Requirements That Make a Post Nuptial Valid
As with any other contract, there are some basic things that are required for a postnuptial contract to be legally enforceable. The first of these is that the contents of the agreement must be in accordance with all laws of the State and Federal government.
From there, both parties must be of “sound mind” at the time of the agreement and neither party can be signing the agreement under duress. Both parties must be entering the agreement voluntarily without any threats, coercion or force involved.
In addition, there needs to be full disclosure between both parties – this means full details about finances, including income, assets, debts, liabilities and any outstanding financial liens, court cases or judgments. If there are findings of fraud or misrepresentation, the Court may find the agreement to be null and void.
One other thing that the Courts will look at in determining whether all or part of a post nuptial is legally enforceable is the issue of “fairness.” This is a vague term, but since the purpose of a postnuptial (or prenuptial) agreement is to make provisions that differ from the standard laws in a State, the Court will look at the agreement to determine whether it is extremely one-side – and if it so, is this fair? One example of a post nuptial that allocates more financially to one partner than the other would be based upon pre-marital assets. In this case, the Court will examine whether this makes sense and whether the lower-income partner willingly and justifiably agreed to this condition.
If there are attorneys involved, it needs to either be one that is working mutually for both parties, or each party needs to have an attorney of his or her own. If only one spouse has legal representation, it will be up to the Court to determine whether or not the contents of the contract are legally binding.
Finally, there are some “formalities” in how the contract is done that are legally required:
The post nuptial agreement must be done in writing;
The post nuptial agreement must be signed by both parties;
The post nuptial agreement must be notarized; and
- The post nuptial agreement must not contain any provisions that are contradictory to public policy or disadvantageous to the public.