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A postnuptial agreement could be called
a contract between spouses. It is very
much similar to a prenuptial agreement
except that a postnuptial agreement is
signed after the marriage. A postnuptial
agreement is made to make sure the
ongoing marriage is smooth sailing and
free from financial fights. A
postnuptial agreement must contain a
full and fair disclosure from both
spouses and have independent attorneys.
Most of the states in USA grant
recognition to postnuptial agreements
either explicitly through statutes that
allow married persons to enter into a
contract with each other or implicitly
through statutes underlining the
requirement of such agreements or by
looking at them as a matter of "case"/
"common" law.
Postnuptial agreements are not governed
by any acts, making the courts look at
them with more scrutiny than prenuptial
agreements. Since a married person has
less margin to bargain, courts look upon
postnuptial agreements with a greater
degree of fairness.
Considerations in a Postnuptial
Agreement:
Discussing and thinking about the
following points with the spouse while
embarking on a postnuptial agreement is
important:
-
Make a list of all debts and assets of
the relationship keeping in mind
future income opportunities.
-
Analyze the present financial status
of the relationship with respect to
spending habits, responsibilities and
include all and sundry concerns over
monetary matters.
-
Always be honest and open about any
expectations regarding the mode of
handling of property matters in case
of death or divorce. Draw up an
agreement, go through it with a fine
tooth comb. Interestingly enough, a
Postnuptial Agreement needs not
involve lawyers. The theory is that
spouses have a fiduciary duty to each
other and as such will not harm the
other side in a postnuptial. It is,
however, recommended that a
postnuptial be drawn and executed by
an attorney and each party have own
attorney.
Contents of postnuptial agreement
-
A detailed list of assets,
liabilities, expectations of gifts,
income and inheritances.
-
Mode of payment of post-marital debts
will be paid.
-
Mode of handling of post-marital
property with respect to income,
gains, appreciation, other proceeds
and dividends of such property in
case of death or divorce.
-
Mode of disbursement of post-marital
property in case of death or divorce.
-
Ownership issues regarding marital
residence and any other secondary
homes in case of death or divorce.
-
Future status of each property, owned
jointly or individually (ex: real
estate, artwork or jewelry).
-
Alimony, spousal support, maintenance
or waivers need to be addressed
(within the legal purview).
-
Death benefits and provisions in the
will.
-
Insurance coverage for medical,
disability or life.
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