Most people have heard of a prenuptial agreement (commonly called a “prenup”), a contract that is signed before the marriage that sets forth the parties set forth their agreement as to the financial issues expected to arise.
The same type of agreement may also be entered into after the marriage. This is called a post-nuptial agreement. A post-nuptial agreement is a contract to define each spouse’s property rights in the event of divorce or death. In order to be enforceable and uphold the agreement, the proponent of the agreement must show that the agreement was entered into freely, knowingly, understandingly (this comes directly from a case; I didn’t make it up), and in good faith after full disclosure. Specifically, the court will look at these types of factors when considering whether or not to uphold a post-nuptial: the waiving spouse’s reason for entering into the agreement, including any inducement, the waiving spouse ‘s access to independent counsel and their understanding of the agreement; complete and fair disclosure of all assets and their values; and the relative bargaining position of each spouse in terms of age, sophistication, employment and life experience (particularly with financial and business matters). To be enforceable by the court, a post-nuptial agreement must be “conscionable” (talk about a lawyer word) which is often defined in the negative; by defining what makes an agreement unconscionable: the inequality must be so strong and gross that it is impossible to state its terms to someone with common sense without “producing an exclamation at the inequity of it.” The fairness of the post-nuptial agreement is determined as of the date the agreement is signed.
This is sophisticated stuff and requires the help of an experienced family law attorney. Don’t plan on doing it for yourself and challenging it in court later.