If you and your spouse are preparing for a relatively amicable divorce – maybe even using mediation – you can do some work beforehand to help minimize the time, stress and cost involved in working out some of your agreements. Specifically, you may want to consider getting a postnuptial agreement, or postnup, that can serve as a “pre-divorce agreement.”
A postnup can cover the same kinds of matters that a prenuptial agreement can, including division of assets and debts and alimony. The only difference is that by definition, it’s drawn up after the couple has gotten married.
Modifying a previous agreement
If you already have a prenup or postnup that was drawn up years ago, that can be a good starting point. Likely, things have changed over the years that warrant some updates. For example, one of you may have decided to be a stay-at-home parent, so you will need some financial support whether you get back into the workplace or not. One of you may have contributed significantly more to purchasing your shared assets than the other, so you want to leave the marriage with your fair share.
There may be specific assets that each one of you wants to keep, like a vacation home, a boat or artwork. If one of you inherited a large sum of money during your marriage, you can stipulate that this won’t be divided, even if it’s been “commingled” with marital assets.
A postnup, like a prenup, generally cannot cover matters involving children, like custody and support. These need to be decided at the time of the divorce and approved by a judge based on what’s in the best interests of the child(ren).
Couples can include information about alimony in a postnup if they agree on it. Sometimes, one or both spouses will waive any right to seek alimony in a postnup.
Regardless of whether you’re drawing up a postnup to prepare for divorce or simply to get an agreement in place regarding financial matters should the marriage end, it’s crucial that each spouse has their own legal representation. This will help you protect your rights and ensure that the agreement is legally valid should you need to use it.