Postnup Q&A with Marcia J. Mavrides
A postnuptial agreement is a legally binding contract entered into by a husband and wife, who want to stay married, but also want a clear agreement regarding management and control of their finances and assets during divorce and/or in the event of divorce.
When may a Postnup be useful for me?
If you want to alleviate tension between our spouse caused by financial concerns. Entering into this style of contract will allow you both to establish how assets will be managed during your marriage and can also set out how these assets will be divided if the marriage dissolves.
Is a Postnup always enforceable?
Enforcement of these types of marital contracts depends on the laws of the state in which the contract was executed and being enforced. General requirements for enforcement include full financial disclosure by both spouses, the drafted language of the agreement, and whether both parties were represented by attorneys during this process.
Can I still divorce after a Postnup?
Yes. Although the purpose of the postnuptial agreement is to encourage a harmonious relationship between spouses so there is no divorce, you always have the right to divorce. However, whether the postnuptial agreement will be enforced or incorporated into your subsequent divorce agreement depends on whether the postnuptial agreement was drafted in accordance with the requirements of the state where it was drafted. See above paragraph regarding enforcement.
Can I draft it myself, using a template?
As with the drafting of most legal documents- Beware! Templates are generalizations that may or may not be appropriate for your situation. Terms may be missed or included without a full understanding of their meaning. As the expression goes, “He who represents himself has a fool for a client."
Do I need to complete a financial statement?
You need to have a document reflecting full disclosure of all of your income, expenses, assets and debt. There is no formal form to complete this, but you must ensure full disclosure. Otherwise, if it is later determined that you did not fully disclose all of your finances, your postnuptial agreement may not be enforceable, which defeats the purpose of having one.
Does a Postnup get filed with the court?
The postnuptial agreement should be executed in at least duplicate (i.e. two originally signed contracts). You and your spouse should each keep an original in a safe place. In the event either you or your spouse want to enforce this contract, you will need to produce an original. Generally, most courts will not hold these contracts for safekeeping.
To speak with a lawyer about divorce or other family law matter, contact Mavrides Law in Boston, Newton, or Quincy, MA. To schedule an initial consultation, call 617-723-9900 or contact the firm at email@example.com