Unlike a prenuptial agreement, which is signed prior to the marriage, a postnuptial agreement is created after the couple has married. Sometimes couples draft postnuptial agreements because they did not have time to create one before they established the marriage, but like prenuptial agreements the contract is created to clearly define how assets and debts will be divided in the event of divorce.
WHAT DOES A POSTNUPITAL AGREEMENT INCLUDE?
A prenuptial agreement generally includes such things as:
· Each spouse’s separate property
· The disclosure of each spouses’ assets and debts
· The rights to a family owned business
· Each spouses’ financial responsibilities for marital debts
· How marital property and debts will be divided if one spouse passes away during the marriage
· How assets will be divided if there are children from a previous marriage.
HOW DO I CREATE A VALID AND ENFORCABLE POSTNUPITAL AGREEMENT?
To create a valid Colorado Postnuptial Agreement, and one that is enforceable in Colorado, a couple should:
- Voluntarily sign a written postnuptial agreement and have it notarized
- Be represented by an attorney
- Make sure the agreement is fair
- Disclose all information regarding their income, debts, and assts.
IS A POSTNUPTIAL AGREEMENT SUITABLE FOR MY SITUATION?
According a survey by the American Academy of Matrimonial Lawyers 2015 survey pre-martial agreements are becoming more common, but it is important to note that these kinds of contracts are not suitable for every married couple. For example, couples should not consider creating a prenuptial agreement to prevent certain behaviors by the other spouse. Pre-nuptial agreements cannot be drafted to curtaiL extramarital affairs or prevent copious spending by the other spouse.
It is also important to note that a postnuptial agreements may not in both spouse’s best interests. For example, the lower-earning spouse may receive less property per the terms of a postnuptial agreement than they would receive if the dissolution of marriage case proceeded to trial. The wealthier partner for example, may draft a postnuptial agreement to protect income and assets that the other spouse could be entitled to if a divorce occurred without a postnuptial agreement.
DO I NEED A FAMILY LAW ATTORNEY?
If you are drafting an agreement:
Make sure that you consult with and retain the services of an experienced family law attorney before you draft a postnuptial agreement. Your lawyer can help you to establish the terms of a fair and enforceable postnuptial agreement.
If you are signing an agreement:
Postnuptial agreements may not be enforceable if the party who did not draft the agreement is not represented by a domestic relations attorney. Please note that your spouse’s lawyer cannot advise you of your rights because doing so would create a conflict of interest. If your spouse’s attorney has drafted the contract, make sure that you read the agreement, and then retain the services of an experienced family law attorney to advise you before you sign. Keep in mind that once you have signed the postnuptial agreement, you have agreed to the terms of a legal contract.
CALL ELISSA BERCOVITZ FOR A FREE CONSULTATION
Elissa Bercovitz has experience with domestic relations matters that are related to marital agreements (prenuptial and postnuptial agreements), the dissolution of marriage (divorce), legal separation, the allocation of parental rights and responsibilities (parenting time, custody, and child support), maintenance (spousal support/ alimony), paternity, step-parent adoption, relocation cases, the division of assets and debt, LGBTQ family law matters, post-decree modifications, and guardianship. Elissa also handles mediation for family law cases.
Please call Elissa Bercovitz at the Bercovitz Law Firm at (303) 803-1678