Points To Keep In Mind When Drafting a Postnuptial Agreement/Marital Agreement

Most marriages in America are a culmination of love between two people. As a result, not many people want to think about ever falling out of love, let alone going through a divorce. Because of this notion, entering into prenuptial or postnuptial agreements may feel unnecessary or offensive. 

In reality, almost one in two marriages in America end in a divorce. While you may not want to believe that your love cannot withstand anything, there is a 50% chance that your marriage will end in divorce, so bringing pre-nuptials or post-nuptials on the table is not being skeptical. 

What Is a Postnuptial or Marital Agreement?

A postnuptial/marital agreement is similar to a prenuptial agreement in that it addresses how a couple will divide their assets, property, and debts after a divorce. But unlike a prenuptial agreement that comes before marriage, a postnuptial/marital agreement happens after marriage. 

“Postnuptial/marital agreements are not necessary for all couples. They are typically used by couples that experience significant changes in their financial situations, for example, where one partner accumulates substantial assets after marriage,” says attorney Brandon H. Zeigler of Parks Zeigler, PLLC. Besides stipulating how the parties will divide their property, postnuptial/marital agreements can also be used to establish spousal support and protect other financial interests of married couples. 

When done right, these agreements can help avoid lengthy court battles during a divorce as they address most issues that could cause contentions. 

What Makes a Postnuptial/Marital Agreement Valid?

While postnuptial/marital agreements are entered by married couples willingly, they are subject to Virginia law. This means a postnuptial/marital agreement that violates the law is not enforceable during a divorce. The first requirement for a valid postnuptial/marital agreement is that it must be in writing between the parties, contained in a court order endorsed by the parties or their counsel, or recorded and transcribed by a court reported and affirmed by the parties on the record. Oral agreements in this context are not valid. 

Any contract can only be valid if the parties entering into the contract are of sound mind. They must also enter the postnuptial/marital agreement voluntarily and it must not be unconscionable (a legal term meaning that it is so unfair/abusive as to not be legal – it is a high burden to meet; however).  

What Can Not Be in a Postnuptial/Marital Agreement?

Postnuptial/Marital agreements cover a wide range of topics. But some things cannot be included, such as child support. The responsibility of determining child support, visitation, and custody during divorce proceedings lies with the court and is based on prevailing circumstances. 

If a postnuptial/marital agreement contains illegal or unethical clauses or goes against public policy, the agreement cannot be enforceable. 

Because of the technical nature of writing a postnuptial/marital agreement, it is best to have a family lawyer help you draft one to avoid the pitfalls that could invalidate it.