Postnuptial agreement

A postnuptial agreement is a written contract executed after a couple gets married, or have entered a civil union, to settle the couple's affairs and assets in the event of a separation or divorce. It is normally "notarized" or acknowledged, and is usually the subject of statute of frauds. Like the contents of a prenuptial agreement, it can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce, death of one of the spouses, or breakup of marriage. In rare cases, a "prenup" may be enforceable even without a marriage, such as with a Domestic partnership or Registered partnership.

There may be many reasons to obtain a postnuptial [ [http://www.divorcenet.com/states/new_jersey/ten_questions_you_always_wanted_to_ask_about_postnuptial_agreements DivorceNet - Ten Questions You Always Wanted to Ask About Postnuptial Agreements ] ] [http://www.cnn.com/2008/LIVING/personal/04/02/postnuptial.agreement/index.html CNN Living: Quit fightingndash get a postnuptial agreement]

Legal recognition and enforceability

Under the Statute of Frauds, a prenuptial agreement is only valid if it is completed prior to marriage. After a couple is married, they may draw up a post-nuptial agreement.

Postnuptial agreements must have all the elements of all contracts:
# Offer
# Acceptance
# Consideration
# Mutual assent
# Legality
# fact|date=July 2008

In the United States, as with prenuptial agreements, five additional elements are typically required for a valid postnuptial agreement:

# agreement must be in writing (oral promises of thiese kind are always prohibited)
# must be executed voluntarily
# full and/or fair disclosure at the time of execution
# the agreement cannot be unconscionable
# it must be executed by both parties ("not" their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgment (law), before a notary public.fact|date=July 2008

In the United States

Postnuptial agreements only came to be widely accepted in the Unites States in the later portion of the 20th century. For many years, US jurisprudence followed the notion that contracts, such as a postnuptial agreement, could not be valid when executed between a husband and wife. The inability of a husband and wife to contract with one another was due to the concept of maritial unity, at the time of marriage, husband and wife become a single entry or person. [ Glanville L.Williams,, "The Modern Law Review", Vol. 10, No. 1 (Jan., 1947), pp. 16-31.] [ Robert F. Cochran, Robert M. Ackerman, "Law and Community: The Case of Torts" (2004), pp. 63.] And since one may not enter into a contract with ones self, a postnuptial agreement would be invalid. Even after the US courts begain to reject martial unity as a legal theory, postnuptial agreements were rejected as being seen to encourage divorce. [J. Thomas Oldham, "Divorce, Separation, and the Distribution of Property" (1987), §4 et seq.]
It wasn't until the 1970's that postnutpial agreements were meet with wide acceptance in the United States. The motivatiing factors considered to be behind this acceptance was the increase in divorce during the 1970's, along with the implimention of so-called "no fault" divorces, granting divorces for any reason. Upon the wave of legislative and stuatory changes, postnuptial agreements begain to find accetpance in American jurisprudence. [Rondal B. Stadler, "Prenutpial and Postnuptial Contract Law in the United States," (2008). www.rbs2.com/dcontract.pdf]
Within the body of law in the US, there are typically three kinds of postnuptial agreements:
*An agreement which will provide for the assignation of marital property at the time of death of one spouse. These agreements typically have the surviving spouse waiving any rights to property they would have had the right to inherit under a will or statutory scheme.
*Agreements that are for all purposes separation agreements. These agreements are entered into to avoid the time and cost of divorce preceedings. The disposition of property, other maritial assets, custody, alimony and support and the like are agreed to by the maritial partners upon separation and the agreement later, usually, incorporated into the final divorce decree.
*The one most fixed in the mind of the public, are areements that are an attempt to affect rights in a future divorce, usually limiting or waiving alimony and/or support and the division of maritial property, which includes property obtained before and after the marriage. [Rondal B. Stadler, "Prenutpial and Postnuptial Contract Law in the United States," (2008). www.rbs2.com/dcontract.pdf]
*Alabama law presumptivly considers postnuptial agreements to be valid under Ala. Code 1975, §§30-4-9 [ [http://law.justia.com/alabama/codes/22063/30-4-9.html] Ala. Code 1975 §30-4-9] and §§43-8-72 [ [http://law.justia.com/alabama/codes/30792/43-8-72.html] Ala. Code 1975 §§43-8-72] , supported by a decision of the Alabama Supreme Court in "Ruzic v. Ruzic", 549 So.2d 72 (Ala. 1989).

*Alaska holds postnuptial agreements valid pursuant to Alaska Statue 13.11.085 and interpreted by the Alaska Supreme Court in "Brooks v. Brooks", 733 P.2d 1044, 1048 (Alaska 1987).

*Arizona has held via a series of court decisons in "Roden v. Roden", 29 Ariz. 398, 242 P. 337 (1926), "In Re Estate Of Harber", 449 P.2d 7(1969) and "Spector v. Spector", 531 P.2d 176 (1975), that postnuptial agreements are valid. Arizona has declined to address postnuptial agreements via statute, but has address the issue of prenuptial agreements via statute.

*Arkansas, like Arizona, has statute(s) that specifically govern prenutpial agreements, but none that govern postnuptial agreements. The Arkansas Supreme Court ruled in "Stewart v. Combs", 243 S.W.3d 294 (2006), interpreting Arkansas Code 9-11-502 Removal of Disabilities of Married Women, that posstnuptial agreements are valid in Arkansas under the prevailing law(s) of contracts and should be interpreted accordingly.

*California views postnuptial agreements as valid per California Family Code Part 5, Chapter 1, §1500 which reads: "The property rights of husband and wife prescribed by statute may be altered by a premarital agreement or other marital property agreement." [ [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=01001-02000&file=1500-1503] California Family Code §§1500-1503] Additonaly, §1503 provides that such agreements are to be "executed and acknowledged or proved in the manner that a grant of real property is required to be executed and acknowledged." [ [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=01001-02000&file=1500-1503] Ibid.]

*Colorado accepts the validity of postnuptial agreements under Colorado Marital Agreement Act, § 14-2-301, et seq., Colorado Revised Statutes 2002 [ [http://www.harhai.com/Maintenance/cmaa.htm] Colorado MaritalAgreement Act] and supported by "In re Estate of Lewin", 595 P.2d 1055, 1057 (Colo.1979), which states "Nuptial agreements, whether executed before or after the marriage, are enforceable in Colorado and a nuptial agreement will be upheld unless the person attacking it proves fraud, concealment, or failure to disclose material information."

*Connecticut courts have found postnuptial agreements valid under Connecticut General Statutes Annotated Title 46b, Chapter 815e, Sec. 46b-36 [ [http://www.cga.ct.gov/2007/pub/Chap815e.htm#Sec46b-36.htm] CGSA 46b-815e-46b-36.] , which permits, by law, a married woman to contract with her husband.

*Delaware has no statutes specifically granting or prohibting postnuptial agreements. Like many other states, Delaware courts have relied upon a statute that provides the right to contract within a marriage, in this case the Married Woman's Act, 13 Del. C. § 311 et. seq., to support postnuptial agreements. [ [http://delcode.delaware.gov/title13/c003/sc01/index.shtml] Married Woman's Act]

*Florida takes a contract law approach to the matter and treats postnuptials as properly enforceable contracts, subject to the prevailing law on the interpretation of contracts, as explained in "Casto v. Casto" 508 So.2d 330 (Fla. 1987).

*In Georgia, postnuptial agreements are considered valid. ["Sanders v. Colwell", 248 Ga. 376 (283 S.E.2d 461) (1981), "Beverly v. Beverly", 209 Ga. 468 (1) (74 S.E.2d 89) (1953)] However, it is up to the discretion of the trial judge as to whether or not the agreement be approved and incorporated into the parties' divorce decree. [Vereen v. Vereen, 226 Ga. 500, 501 (175 S.E.2d 865) (1970)] The trial judge, according to the Georgia Supreme Court should employ basically three criteria in determining whether to enforce such an agreement in a particular case: (1) was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) is the agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable? [Ibid.] If the answer to all three criteria is "no", the postnuptial agreement is generally valid.

*Idaho allows for postnuptial agreements, referred to as "marriage settlement agreements", to be valid if it be in writing, that it be executed and acknowledged in the same manner as conveyances of land, and if it affects real property, that it be recorded in the county in which any affected real property is located. Idaho Statues §32-915 to §32-920. [ [http://www3.state.id.us/idstat/TOC/32009KTOC.html] Idaho Statues Title 32 Domestic Relations, Chapter 9 Husband and Wife - Separate Community Property]

*Illinois under its Illinois Marriage and Dissolution of Marriage Act (750ILCS5/) [ [http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2086&ChapAct=750ILCS5/&ChapterID=59&ChapterName=FAMILIES&ActName=Illinois+Marriage+and+Dissolution+of+Marriage+Act] Illinois Marriage and Dissolution of Marriage Act (750ILCS5/)] permits postnuptial agreements to be incoporated into divorce decrees if it meets the requirements of the Act.

*In Indiana postnuptial agreements are presumptively valid under Indiana Code Title 31- Dissolution of Marriage and Separation [ [http://www.in.gov/legislative/ic/code/title31/ar15/] Indiana Code Title 31- Dissolution of Marriage and Separation. ] Additonally, the Courts have found that public policy of Indiana "favors the amicable settlement by written agreement of the property rights of those citizens who are having their marriages dissolved." [State "ex rel. Roberts Morgan Cir. Ct. (1968)," 249 Ind. 649, 232 N.E.2d 871, 873 "overruled on other grounds", "State ex rel. Schutz v. Marion Superior Court" (1974), 261 Ind. 535, 307 N.E.2d 53, 55; "Stockton v. Stockton" (1982), Ind. App., 435 N.E.2d 586, 589.] However, such agreements must be approved by the court, and it is only after such apporval can they be considered valid. Per "Atkins v. Atkins", 534 N.E.2d 760, 762 (Ind.Ct.App. 1989) "The court should do [incorporate postnuptial agreements] so unless it determines that the agreement was the product of some unfairness, unreasonableness or manifest inequity in its terms or that it was procured through fraud, misrepresentation, coercion, duress, or lack of full disclosure. A settlement agreement that has not been approved by the dissolution court and incorporated and merged into the decree has no legal efficacy."

*Kansas has ruled on the subject of postnuptial agreements: "The general rule in this state is that contracts made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intentions of the makers and to uphold such contracts where they are fairly and understandingly made, are just and equitable in their provisions, and are not obtained by fraud or overreaching. Generally speaking, such contracts are not against public policy, although a different rule obtains where the terms of the contract encourage a separation of the parties." [ "Matlock v. Matlock", 223 Kan. 679, Syl. ¶ 1, 576 P.2d 629 (1978)]

*Kentucky generally accepts prenuptial agreements under Kentucky Statute Title XXXV §403.180, "(1) To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for maintenance of either of them, disposition of any property owned by either of them, and custody, support and visitation of their children." [ [http://www.lrc.ky.gov/KRS/403-00/180.PDF] Kentucky Statute Title XXXV §403.180]

*Louisiana (perhaps because it follows a legal tradition different from other 49 states) has codified postnuptial agreements, or "matrimonial agreements" as they are known in Louisiana, under Louisiana Civil Code Book III, Title VI, Chapter 1, Art. 2325, "Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law." [ [http://www.legis.state.la.us/lss/lss.asp?doc=109394] Louisiana Civil Code Book III, Title VI, Chapter 1, Art. 2325]

*Maryland by a string of case law has accepted the validity of post nuptial agreements as contracts to be interpreted by the current state of contract law in Maryland. [See: "Pearre v. Grossnickle", 114 A. 725 (1921), "Crise v. Smith", 133 A. 110 (1926), "Pulaski v. Riland", 86 A.2d 907 (1952) and "Grove v. Frame", 402 A.2d 892 (1979)]

*In Massachusetts, postnuptial agreements have been found valid under Massachusetts Statutes, Chapter 209 §2 [ [http://law.onecle.com/massachusetts/209/index.html] Massachusetts Statutes, Chapter 209 §2] .

*Michigan has abrogated the concept of marital unity via statute, under Michigan Code §557.23 Common law disability of married women to contract abrogated . [ [http://www.legislature.mi.gov/(S(g0zhnl45kcotbrnsverann3e))/mileg.aspxpage=getObject&objectName=mcl-557-23] MC §557.23] Michigan has futher extended this concept under Michigan Code 557.24 Contract by married woman, which in part states "A married woman may enter into a contract with respect to her separate property..." [ [http://www.legislature.mi.gov/(S(g0zhnl45kcotbrnsverann3e))/mileg.aspx?page=getobject&objectname=mcl-557-24] MC §557.24] [See: "Clark v. Castner", 219 N.W. 675 (1928).] . Further, "Rockwell v. Estate of Leon Rockwell", 24 Mich. App. 593, 180 N.W.2d 498 (1970) states that postnuptial agreements are no invalid per se and are to be examined under existing contract law as it is understood in Michigan.
*Minnesota allows for postnuptial agreements under Minn. Stat. Ann. §519.11. However there are some provisions governing postmarital agreements. Minnesota Statutes explicitly provide that,in order to be enforceable, each spouse must at the time of execution, be represented by separate counsel. Additonally, "each" spouse must, at the time of execution, own property with a total net value exceeding $1.2 million. [ [https://www.revisor.leg.state.mn.us/statutes/?year=1997&id=519.11] Minn. Stat. Ann. §519.11]

*Mississippi like many other states, has abolished the concept of marital unity and provided for women to contract with thier husbands under Mississippi Code § 93-3-1 [ [http://michie.com/mississippi/lpext.dll?f=templates&fn=main-h.htm&cp=] Mississippi Code of 1972] Mississippi case law also supports post nuptial agreements [ See: Newell v. Hinton, 556 So.2d 1037 (Miss. 1990)] so long as the agreement does not dispose of the matter of child custody and support. If the post nuptial agreement does address child custody and support, Mississippi courts have traditionally invalidated the entire post nuptial agreement. [See: McKee v. Flynt, 630 So.2d 44 (Miss. 1993)]

*The Missouri Supreme Court has ruled that postnuptial agreements are not against public policy, making them presumptivly valid. ["Lipic v. Lipic", 103 S.W.3d 144 (Mo.App.E.D. 2003)] In determining the the enforceability of the post nuptial agreement, Missouri courts use the same standard when examining the enforcability of a pre-nuptial agreement. The post nuptial agreeement must be entered into "freely, fairly, knowingly, understandingly and in good faith and with full disclosure." [See: "McMullin v. McMullin", 926 S.W.2d 108, 110 (Mo.App.E.D. 1996), "Darr v. Darr", 950 S.W.2d 867, 871 (Mo.App.E.D. 1997), "Lipic v. Lipic", 103 S.W.3d 144 (Mo.App.E.D. 2003)]

*Montana finds postnuptial agreements valid under Montana Code Annotated §§40-2-301 through 311. [ [http://data.opi.state.mt.us/bills/mca_toc/40_2_3.htm] Montanta Code Annotated§§40-2-301 through 311]

*Nebraska case law has stated that postnuptial contracts are proper contracts to make reciprocal or mutual wills, and such contracts are valid in Nebraska. [ See" McKinnon v. Baker", 220 Neb. 314, 370 N.W.2d 492 (1985)," Brown v. Webster", 90 Neb. 591, 134 N.W. 185 (1912); "Wyrick v. Wyrick", 162 Neb. 105, 75 N.W.2d 376 (1956); "Eagan v. Hall", 159 Neb. 537, 68 N.W.2d 147 (1955).]

*Nevada, under its statutes, Nevada Revised Statutes Title 11, Chapter 123 "et seq." [ [http://www.leg.state.nv.us/nrs/NRS-123.html] ] and the dicta found in "Love v. Love", 114 Nev. 572, 959 P.2d 523 (1998), "Daniel v. Baker", 106 Nev. 412, 794 P.2d 345 (1990) and Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978), postnuptial agreements are valid.

*New York law will enforce postnuptial agreements, Domestic Relations Law §236(B)(3) states that three conditions must be meet in order for the agreement to be valid and enforcible. The first is that the agreement must be in writing; second it must be subscribed to by the parties and; third it must be proven or otherwise acknowledge in the same manner as a deed or other legal record. [ "Matisoff v. Dobi", 681 NE 2nd 376, 3733, 659 NY.S.2d 209, 210 (NY 1997)] However, New York General Obligations Law §5-311 voids any postnuptial agreement that has the intent to relieve either the husband's or wife's obligation to support the other in a manner to prevent the other form becoming a "public charge." ["Bloomfield v. Bloomfield", 74 NE 2nd 905, 952, 738 NY.S.2d. 650, 652 (NY 2001)]

*Ohio bans all postnuptial contracting under Ohio Rev. Code Ann. § 3103.06 [ [http://codes.ohio.gov/orc/3103.06] Ohio Rev. Code Ann. § 3103.06] which reads “A husband and wife cannot, by any contract with each other, alter their legal relations, except that they may agree to an immediate separation and make provisions for the support of either of them and their children during the separation.” Additonally, Ohio courts have traditonally refused to enforce postnutpial agreements executed in other states if the couple in question is domiciled in Ohio. ["Brewsaugh v. Brewsaugh", 491 N.E.2d 748, 751 (Ohio Com.Pl. 1985).]

United Kingdom

The United Kingdom, as of 2007, does not enforce prenuptial or postnuptial agreements (although there have been some notable exceptions).fact|date=July 2008

Notable examples

* Financier Wilbur Ross and Betsy McCaughey Ross.citation needed|date=July 2008

In popular culture

*

See also

* Prenuptial agreement

References

External links

* [http://www.smartmoney.com/divorce/basics/index.cfm?story=prenups Marriage & Divorce: When Prenups Fail]