Postnuptial Agreements – How They Become Unenforceable

Why a Postnuptial and Not a Prenuptial?

When a couple becomes involved, the thought of divorce after marriage is generally far from either’s mind. Then, once both parties wed, the possibility of entering into a prenuptial is null, and chances of using that document to protect assets and prepare for the possible end of the relationship is void. However, the postnuptial agreement is still available after both legally marry. Generally, this legally binding document provides both husband and wife the ability to use money as a means to support during the marriage, ensure custody and visitation and the disbursement of wealth either at divorce or when one person dies. It is to prepare for various types of life events and not just the issue of divorce.

Unreasonable Provisions

When creating a postnuptial, the spouses must ensure that no provision is unreasonable and unfair to one party. Even when the husband and wife sign the document willingly, it must ensure fairness to both spouses. Additional conditions require that any state laws are in adherence or the paperwork is no longer enforceable in the courts. The judge may throw the postnuptial out if any violations of the state’s laws occur. The primary concerns with unreasonable provisions happen through the distribution of wealth. If one spouse dies, the other should receive monetary support from the estate and additional help for any children of the marriage with reasonable provisions.

Monetary Provisions

In a postnuptial, there are marital properties and those that one or both spouses exclude from the marriage. In the agreement, one provision that causes an unenforceable postnuptial document is when the monetary conditions are unfair to one person. This happens when the spouse excludes the disbursement of wealth for situations of death, major life events or if the two divorce. Some spouses will state that the other person will receive nothing. This is usually unenforceable based on state laws and the requirement that a spouse receives some monetary support unless he or she earns the same amount as the other and does not need the financial assistance.

Custody Conditions

Another provision that is usually unenforceable is when one spouse will receive full or sole custody of the child from the marriage and the other receives either no custody or little to no visitation. As per state law, unless the parent is unfit or could harm the youth, he or she should have some time to visit. The arrangements of custody and standard visitation may process through the postnuptial, but what causes the judge to throw this condition or the entire postnuptial agreement out is when these conditions are in direct violation of the state’s legal proceedings.

Adherence to State Laws

Postnuptial agreements are generally enforceable if the parties of the document adhere to all state laws regarding inheritance, child custody, visitation and monetary support if a divorce does occur. Property division is one of the primary concerns with a postnuptial agreement. If the couple splits up, becomes legally divorced or one of the two dies, dividing the property must occur within the state laws where the couple resides. This may involve a business, investment ventures, monetary projects and accrual of property that may even include smaller items such as furniture and pets. If any state laws are in violation within the postnuptial, the judge may throw out the entire document.

Other matters such as spousal support or inheritance must remain within the confines of the state laws as well. If the estate owner dies, the postnuptial agreement usually explains what the other spouse will receive after the death. This may also come with a will or other legal document. The specifics require adherence to state laws, but it is possible to decrease or remove support from the spouse based on previous monetary assistance in the marriage.

Legal Support with Postnuptial Agreements and Enforceability

When creating the legal document between the couple, it is crucial for both to seek the advice and assistance of a lawyer to ensure the state laws are in adherence. Violations may lead to severe consequences, and an estate lawyer may explain the matter further for both parties.

Provided by HG.org

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case.

Need a Lawyer? Let Us Help You