Pros and Cons of a Post Nuptial Agreement
When done correctly, there really is no downside to having a postnuptial contract drawn up. Having specific instructions of what will happen with all of your finances, and how your marital assets and liabilities will be divided, will expedite the divorce process.
Another positive effect that happens for many couples who may be having “troubles” is by working through things, especially if they utilize the services of a family law mediator, is that they actually strengthen their bonds of marriage.
This is often the case when the issues are related to poor financial management behaviors. For example, if one party is a compulsive shopper or gambler, identifying the problem and taking appropriate action can help the couple fix the underlying issues.
In terms of “negatives” related to post marital agreements, the most common fall into one of three categories.
• Creating a document that makes the divorce (or survivorship) proceedings more complicated. This type of situation happens if you have a document that either doesn’t include all the necessary information, significantly contradicts the terms of a will, or includes that are not legally enforceable. Of all the problems that can happen with a post nuptial agreement, this is the one that is easiest to avoid. When in doubt, consult legal counsel before signing any post nuptial agreements.
• Creating a document that is unfair or one-sided. This is the type of situation in which one-party signs a post nuptial contract in which he or she does not fully agree with the terms – typically against his or her will or under duress. It may not be that the party felt “forced” to sign the document, but rather it may have just seemed easier at the time to avoid emotional conflict. As we have already stated, if you have any doubts about signing a post nuptial agreement – DON’T DO IT! You cannot be required to do so, no matter how much badgering the other party does. Consult an attorney.
• Creating the post nuptial document makes matters worse. There are times when a couple may start out with great hopes that by putting financial matters in writing, it will improve the situation, but this isn’t always the case. If a couple is already having problems communicating, this process may escalate the underlying issues.
In matters like these, most likely the marriage was going to end eventually anyway because some things simply can’t be fixed. If you and your spouse are able to come up with a document that you can both mutually agree upon, go ahead with it. Otherwise stop what you are doing and consult a divorce attorney.
Ultimately, whether or not you draw up a post nuptial agreement will be something that you, and your spouse will have to decide upon together. A properly constructed post marital contract can be a great tool, for all the reasons that have been outlined in this article.