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As long as a postnuptial agreement is in writing, signed by both parties, and is not in extreme favor of either party, a court will likely find it to be binding.
Technically, you can write your own postnuptial agreement, but since it can have serious legal ramifications down the road, it is always a good idea to work with an experienced attorney on the creation of the agreement.
If you and your spouse are experiencing hardship, particularly involving disputes about finances, a postnuptial agreement could be an excellent way to resolve this. By coming to an agreement about how assets and other financial matters would be handled in the event of a divorce, it can relieve some of the tension.
Many people have heard of prenuptial agreements and know that they are meant to detail a couple's agreement on their assets, income, and other issues prior to marriage. Postnuptial agreements (postnups) are discussed less frequently, but they are an equally important tool for managing the division of assets and other potential challenges after the dissolution of a marriage.
Read on to learn about postnuptial agreements and how an Atlanta postnuptial agreement lawyer can help.
What is a Postnuptial Agreement?
The main difference between prenuptial and postnuptial agreements are that prenuptial agreements are entered into before the marriage and postnuptial agreements are entered into after the couple is already married.
A postnuptial agreement detail how the parties' assets will be divided if they divorce. They are also used to detail responsibility for any debt and to detail each person's financial responsibilities during the marriage. Postnuptial agreements can include division of assets and debt, requirements for spousal support, and distribution of assets after a spouse's death. In some situations, a postnup can even include a plan for child custody and support in the event the couple decides to divorce.
The details of a postnuptial agreement will be unique to each couple.
When to Consider a Postnuptial Agreement
There are many scenarios where a couple should consider a postnuptial agreement, including:
Failure to secure a prenuptial agreement.
Many couples consider a prenuptial agreement but either run out of time to put one in place, aren’t quite sure what to include, or fail to ask their partner for one out of fear of their reaction. A postnuptial agreement allows the couple to put an agreement in place when they are ready.
A spouse has children from a prior marriage.
A postnuptial agreement can define the division of assets between a spouse and children from a prior marriage. Documenting the parties' intentions ensures that the intended amount is reserved for the child.
One spouse is opening a business.
A business increases financial risk and reward in a relationship. The beginning of a business often requires an individual to incur debt, and if the business is successful it can reap significant profits. A postnuptial agreement will help the couple hammer out these details at the outset of the business.
Either spouse receives an inheritance or other large sum of money.
While Georgia law generally finds an inheritance to be separate property, this gets more complicated if the funds are commingled with joint property. A postnuptial agreement will help clear up any confusion.
One spouse stays home with children.
If a spouse changes their financial situation in the benefit of the marriage and the family, they may want to ensure that they will receive sufficient financial compensation after a divorce.
One party has significant assets or debt.
If the parties enter the relationship with very different financial positions, a postnuptial agreement can help clarify their intention if the marriage ends.
To update a prenuptial agreement.
Some couples agreed to a prenuptial agreement prior to marriage but need to change the agreement. A postnuptial agreement is a tool that enables the couple to modify a prenuptial agreement.
The above list is not exhaustive, but it helps demonstrate the types of situations that cause couples to consider a postnuptial agreement. If you are unsure if a postnuptial agreement makes sense, you can consult with an Atlanta postnuptial agreement lawyer.
Discussing a postnuptial agreement with your partner can be stressful, but it is an important conversation. Make it clear that your intention is to benefit both individuals and consider raising the conversation during other financial-planning conversations. If you work with a financial planner, you could also seek their input on the benefits of a postnuptial agreement.
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Preparing an Enforceable Postnuptial Agreement
Once you have put in the time and effort to prepare a postnuptial agreement, you want to know it is going to be enforceable if the marriage ends in order to help to avoid a contested divorce. Georgia's policy favors the enforcement of postnuptial agreements, but a court will find the agreement unenforceable if:
• It was obtained through duress, fraud, or misrepresentation of any material fact;
• The agreement is unconscionable, meaning that it is so one-sided or unfair that it would shock the conscience; or
• The parties' facts and circumstances have changed drastically since the agreement was signed making it unfair or unreasonable.
To avoid a finding of unenforceability, be sure that:
• The agreement is in writing;
• Both parties are represented by independent counsel;
• The information in the document is complete and accurate; and
• Both parties are given sufficient time to read and understand the document
Your lawyer will be a critical partner in representing your interests in the preparation of a postnuptial agreement.
Work With an Atlanta Postnuptial Agreement Attorney
An experienced Atlanta Family Law Attorney will assist you in drafting an enforceable postnuptial agreement that fairly represents your financial interests. Your lawyer will work with you to understand your goals for the agreement, prepare a draft agreement, and negotiate for your best interest. Working with a lawyer will also ensure that your agreement includes all the required elements of an enforceable agreement.
Contact us today to schedule a consultation.
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