Although prenuptial agreements are becoming more and more common, only about 5 percent of couples have a prenup in place at the time of their divorce. This is true even though 11 percent of all couples believe their marriage could end in divorce—at the time of their marriage.
Postnuptial agreements are even less common. A postnuptial agreement is very similar to a prenuptial agreement, but it is drafted after the marriage takes place. Both a prenuptial and a postnuptial agreement can ensure your financial interests—and your future—are protected following a divorce. While a postnuptial agreement can do many things, one thing it cannot address is child custody outcomes.
So, if you and your spouse have children, you will have to hammer out child custody issues during the divorce, however, your postnuptial agreement can do the following:
- Safeguard Inheritance. If you inherited money before your marriage (and didn’t think it was necessary to have a prenuptial agreement), or you inherit a significant sum of money following your marriage, you might want to consider a postnuptial agreement. This will ensure that the money will go to your children from a prior marriage or to another beneficiary of your choice rather than to your spouse.
- Property Separation. If you want to keep separate property separate—so that it does not become marital property, you can use a postnuptial agreement to do this. As an example, suppose you come into the marriage with $500,000—that you keep in a separate bank account with only your name on the account. You then take out $350,000 of that money to make a down payment on a home that is owned by you and your spouse. Without a postnuptial agreement, the home equity is split between you and your spouse during a divorce. By using a postnuptial agreement, however, you can state that the marital equity in the house does not include the down payment.
- Provide Clarity for the Future. A postnuptial agreement can provide clarification about the future in the event things do not work out as planned.
- Take Care of Children. A postnuptial agreement can help ensure children from a prior relationship are taken care of in the way their parent chooses.
- Protect Family Business. A postnuptial agreement can protect a family business or a business that one spouse had before the marriage.
- Safeguard against Financial Irresponsibility. Following the marriage, one spouse may realize the other is not financially responsible, therefore, may want to protect themselves through a postnuptial agreement. As an example, if one spouse has run up gambling debts on their own, the other may make provisions through a postnuptial agreement that those debts are not marital debts.
- Address Spousal Support. Spousal support can be addressed through a postnuptial agreement. In particular, suppose one spouse agrees to stay home with the children, while the other has a lucrative career. The spouse who stays home may want to negotiate future spousal support in the event of a divorce that repays them for this sacrifice of their own career.
Georgia Requirements for Postnuptial Agreements
To be both valid and enforceable, a postnuptial agreement must meet the following basic requirements:
- Postnuptial agreements must be in writing; an oral postnuptial agreement is not considered valid.
- The postnuptial agreement must be signed by both parties voluntarily and intentionally. One spouse cannot be coerced or threatened into signing a postnuptial agreement.
- There must be full and fair disclosure for a postnuptial agreement to be valid. This means that all assets, liabilities, and income from both parties must be disclosed to the other.
- A postnuptial agreement must be fair and not one-sided or extremely unjust to one party.
- Postnuptial agreements must meet the requirements of Georgia law to be valid, including being signed in front of two witnesses, with the signatures of those witnesses.
There is no longer a stigma attached to prenuptial and postnuptial agreements, as more people are using these agreements in the same way they use insurance—in the event of the unexpected.
While most postnuptial agreements involve money and the protection of assets, such mundane things as how household chores are divided and how often in-laws can visit may also be included in a postnuptial agreement.
A postnuptial agreement is recommended for every couple that did not sign a prenuptial agreement. Having a postnuptial agreement in place can prevent expensive, contentious divorce battles, or post-death inheritance disputes.
Contact Our Atlanta Divorce Attorneys
We can help you create a postnuptial agreement, even if you are not considering a divorce. It is important to protect yourself and your future at every turn. A postnuptial agreement can provide direction and protection for many couples even after marriage.
Call us today at (770) 284-6153 or fill out our confidential contact form. We can set up a consultation so that you can review all your legal options.
Attorney Sarah Hobson at Hobson and Hobson, P.C. are powerful advocates for those who fight for better futures for those going through divorce and custody law matters.
