Like many people, you are probably familiar with a pre-nuptial agreement, which is meant to protect your assets prior to marriage, but less familiar with a post-nuptial agreement.
However, post-nuptial agreements are becoming more popular as married couples hope to save potential time and money fighting over assets if they divorce.
A post-nuptial agreement serves the same purpose as a pre-nuptial agreement. The main difference is that a post-nuptial agreement is negotiated and executed after marriage rather than before.
Post-nuptial agreement requirements
Virginia law states that post-nuptial agreements are afforded the same rights and conditions as pre-nuptial agreements. In fact, if the terms of your post-nuptial agreement are transcribed into a court record and you and your spouse agree under oath to the terms, the agreement does not need to be in writing.
Outside of this specific situation, any post-nuptial agreement must be in writing and signed by both spouses.
You might not like the idea of a post-nuptial agreement because it anticipates that you will get divorced, but there are many reasons to consider a post-nuptial agreement.
Benefits of a post-nuptial agreement
Life usually changes for both spouses over the course of a marriage. One of you could come into a large inheritance, start a successful business or have children from a previous relationship.
The changes could also be negative. Perhaps one spouse develops a gambling or substance abuse addiction, leaving the other spouse wanting to protect their assets from being sold or gambled away.
Additionally, post-nuptial agreements can cover more than just asset division. Terms surrounding spousal support, alimony, legal fees and other costs can be included in a post-nuptial agreement.
Your post-nuptial agreement can also have contingencies built into it. For example, you can include language stating that the agreement is negated upon evidence that one spouse cheated.
What a post-nuptial agreement cannot include
Topics such as child custody and child support are usually not allowed in post-nuptial agreements.
This is because custody is based on the best interest of the child and your agreement might not be in your child’s best interest. Child support is based on certain guidelines that you cannot negotiate away in a private agreement.
Otherwise, you can typically put any terms you want into a post-nuptial agreement so long as they do not violate public policy or are not extremely unfair to one spouse. Any evidence that a spouse was threatened or coerced into signing the agreement will generally invalidate it.
The importance of being honest
Evidence that one spouse intentionally hid or failed to disclose assets will also usually invalidate a post-nuptial agreement. Therefore, you should always disclose all assets and provide an accurate value of each.
Dishonesty or hiding assets could not only prevent your post-nuptial agreement from being enforced, but a court could award your spouse more assets in a divorce as a penalty.
As you begin to negotiate the terms of a post-nuptial agreement with your spouse, it is best to seek guidance along the way. It is important to know your rights outside of the agreement, whether the agreement is legally enforceable and if the agreement is right for your situation.