What is a Post-Nup?
Post-Nup Definition
A postnuptial agreement, also known as “post-nup agreement,” “postmarital agreement,” or simply “marital agreement” are contracts between spouses after the wedding date. Postnuptial agreements can correct defects in prenuptial agreements or achieve the same ends where there is no pre-nup. By clarifying property rights upon a divorce, a well-made postnuptial can potentially save a couple time, energy, and divorce lawyers’ fees which would otherwise occur in a contentious divorce.
Postnuptial agreements can address a wide range of issues like:
- How property acquired by the couple after the marriage should be allocated;
- Who should have what degree of ownership/control over a business;
- Spousal support;
- How infidelity should be handled.
Post-Nup Agreements Continue to Rise in Popularity
Although they are less common than prenuptial agreements, post-nup agreements are gaining in popularity. More than 51% of divorce attorneys noted a post-nup increase in a recent American Academy of Matrimonial Lawyers (AAML) survey. This little-known agreement between spouses is increasing in popularity every year in the Las Vegas Valley. A post-nup, as opposed to a pre-nup, takes place after the wedding. It outlines the division of assets and liabilities in the event of a divorce or death.
Common Uses of Postnuptial Agreements
The ultimate goal of any marital contract is to make sure both partners have protection in the event one partner dies, or they file for divorce. These contracts can also reduce the time and costs of hiring divorce lawyers to come to an agreement in court. The following are common areas couples seek to clarify in postnuptial agreements: asset protection, separate property, business control and valuation, postnuptial agreement after infidelity.
Legality of a Postnuptial Agreement
Postnuptial agreements are legally enforceable. Under NRS 123.070, a couple may enter into any agreement with each other regarding property that they could enter into with anyone else. NRS 123.220 gives authority for a couple to enter into a marital agreement making property acquired after the wedding separate property.
Other Nevada laws grant authority for other terms in a postnuptial agreement including:
- Allocating a spouse’s earnings;
- Granting to one spouse complete management and control of community property;
- Allocating income and resources when a spouse has been disabled.
What a Postnuptial Agreement Cannot Do
Postnuptial contracts cannot eliminate or change the legal duties of a spouse. Such agreements also cannot deal with child custody or child support, either during the marriage or after divorce.
Including these things can endanger the rest of your agreement. If one spouse legally challenges the agreement and they find an “all or “nothing” aspect of it, then the presence of that clause or intention can invalidate the entire postnuptial agreement.
How to Have the Post-Nup Conversation
“While many spouses recognize that postnuptial agreements would protect their financial security as well as enhance the stability of their marriage, it’s not always an easy topic to broach,” explained Rocheleau. “We work with our clients directly to help them maneuver through this conversation and ultimately create a contract that is beneficial and agreeable to both parties. These contracts not only protect a marriage, they truly can help the relationship grow and prosper.”
If a post-nup sounds right for you, use the following tips to have the most effective conversation.
- Be sure to approach the topic in a comfortable location that is ideal for a serious conversation. Choose a quiet, intimate location and make sure that you both have the time to devote to the conversation.
- Choose the right time to begin the conversation. If the two of you are not getting along or are in the middle of an argument, then suggesting a post-nup is not going to help.
- Bring in a third party if you need to. If you do not feel comfortable bringing up the idea of a post-nup alone, consider scheduling a meeting with an attorney or a financial advisor. This professional can help explain the benefits of the contract in a way that is informative.
How to Get a Post-Nup Agreement
While the State of Nevada recognizes verbal contracts, they can be difficult to substantiate in court.The best option is to have a properly written contract between the two of you. Having it set up by a lawyer is a good idea. Keep in mind that a lawyer can only represent one of you. For the same reason you should not use one divorce attorney for both spouses when getting a divorce, using two different lawyers is best for a post-nup. That way you know that both sides have fair representation.
Many couples will save money by writing their own post-nup agreements. Then they take those drafts to divorce attorneys for improvements or clarification. A post-nup agreement is not a bad thing. Neither does it signal that you may want to split from your spouse in the future or vice versa. It is only an extra layer of protection against unknowns in the future.
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