Hiring a Postnuptial Agreement Lawyer: Do You Need One?

You’re happily married, and your relationship is going perfectly. What could you possibly want with a postnuptial agreement? 

There are many reasons that couples decide to sign a postnup. They might include:

• One spouse coming into a large inheritance
• One spouse taking on a lot of debt to get a new degree
• One partner deciding to stay home to raise kids and no longer receive a paycheck
• One person starting a business

Life continues to change and grow during your relationship. Any of these big financial transitions can spur you and your spouse to seek the help of a lawyer with experience in writing postnuptial agreements, creating a fair and equitable postnup for both spouses.

While postnups aren’t often considered the height of romance, they offer both you and your spouse protection and a promise that all shared property will be divided in a way you both agree to in the event of a divorce.

What is a postnuptial agreement?

A postnuptial agreement is a legal contract that a married couple can agree to which addresses the separation of assets, property, and debts after they are legally wed, but prior to a divorce settlement. A postnuptial agreement might also be called a postnup or postmarital contract.

Prenuptial agreements and postnups are both marital agreements and are similar in structure. The main difference between the two documents is that postnuptial agreements are signed after marriage, while prenuptial agreements are signed before a couple gets married.

The role of a postnup agreement lawyer

A postnup agreement lawyer is an attorney who specializes in the creation, negotiation, and enforcement of postnuptial agreements. They can help you write a postnuptial agreement to ensure that your agreement is equitable and fair and help you enforce the agreement upon divorce if necessary.

You might seek out a postnuptial lawyer for:

• Legal advice
• Ensuring both partners have met the “full disclosure” standard
• Negotiating equitable terms for both parties
• Drafting and reviewing the agreement
• Representing the best interests of an individual, not the couple

Legal advice

First and foremost, a postnup agreement lawyer can offer you legal advice. A postnuptial agreement is a legal document and must, therefore, meet certain standards to be enforceable. A lawyer can ensure that your agreement meets those standards.

It is recommended that both parties who enter into the agreement retain their own separate legal counsel. Each party having their own lawyer to represent their interests helps ensure that the agreement is fair and equitable to both parties. If, for any reason, you don’t get an attorney, you’ll need to waive your right to a lawyer in writing in the postnuptial agreement.

Full disclosure

One of the major requirements that must be met for postnuptial agreements to be legally enforceable is that both partners fully disclose their financial assets, properties, and debts prior to signing the agreement. They must disclose both marital and separate property. This is known as a full and fair disclosure.

As a postnuptial agreement deals with the equitable distribution of assets and debts, if one partner hides some of their finances or bank accounts, it's not possible for the agreement to be entered into knowingly and willingly. 

A lawyer can help ensure you’ve asked all the right questions and are fully disclosing your own assets, as well as making sure your spouse does the same.

Negotiation

A postnup is an agreement to the division of assets in the event of a divorce. This means you and your spouse must agree upon who would retain which assets. This can be complicated and messy. An attorney can help you and your spouse negotiate and come to a fair and equitable agreement.

Drafting and reviewing

As lawyers, postnuptial agreement attorneys specialize in writing documents that are legally enforceable. Because a postnup is a legal agreement, this can be helpful. To be in line with the law, postnuptial agreements must meet certain criteria. The best person to ensure that happens is a lawyer. Hiring a lawyer to draft and review your postnuptial agreement can save the headaches that might develop if you find out your agreement isn’t legally valid.

Representing best interests

Your postnuptial agreement should be as unique as you and your spouse. A lawyer can help you to customize your agreement to meet your needs and unique finances. They can help you protect your separate assets and simplify the division of marital property. 

Do you need a postnup attorney?

If you are married and considering a postnuptial agreement, you might benefit from the help of a lawyer. If you and your spouse had a prenuptial agreement, but it's now out of date, you might also be interested in working with a lawyer to create a postnup.

While you can write your own postnup agreement, it’s important that it meets all of the legal requirements to be valid. This can be a challenge without the help of an experienced lawyer.

Hiring a postnup attorney ensures that your postnup is fair, valid, and tailored to you and your spouse and gives you the peace of mind that when you need it, it’s there.

• Ensures fairness: It is recommended that each spouse has their own attorney when creating a postnuptial agreement. This ensures that the agreement is fair and equitable to both parties.
• Adheres to legal requirements: To be valid, a postnuptial agreement cannot be unconscionable. This means that it must be signed by both willing spouses, who’ve had time to make an informed decision. The agreement cannot be entered into under duress or without full disclosure. Additionally, the agreement cannot contain provisions dealing with child support. A postnup attorney can make sure these requirements are met and that the agreement is valid.
• Tailors to your unique situation: Your finances are as unique as you are. It’s important that your postnup takes everything into account and is tailored to your unique situation. 
• Offers peace of mind: Knowing that you have a legally viable and equitable way to divide shared property in the event of a divorce can offer you and your partner significant peace of mind. 

Tips to hire an experienced lawyer

If you’re interested in working with a lawyer who specializes in postnuptial agreements, here are some tips for finding just the right person.

• Request background information about whether or not the lawyer has experience writing marital agreements. Someone who is experienced in creating these agreements will be able to assist in creating a customized agreement that’s just right for you and your partner.
• Ask friends and family for a referral. Sometimes, the best references come from those you know. 
• Search an online attorney directory. LegalZoom offers a directory of experienced lawyers with credentials listing what areas of law they specialize in. You can find someone just right for your situation. 
• Read reviews. Many lawyers include reviews with their online bios. Be sure to look for reviews that reference fair and equitable agreements, lawyers being responsive and easy to work with, and someone with good communication skills. 

If you're considering writing a postnuptial agreement for you and your spouse, working with lawyers that you both trust to create an equitable and enforceable agreement can make the process easier. A good recommendation or online review can be the first step to finding the right person to create your valid postnuptial agreement.

FAQs

How do prenuptial and postnuptial agreements differ?

The difference between prenuptial and postnuptial agreements is simple. It depends on when the agreement was signed. A contract signed before marriage is a prenuptial agreement, while a contract signed after marriage is a postnuptial agreement. 

Do both parties need a lawyer for a postnuptial agreement?

Similar to when drafting and signing a prenuptial agreement, it's recommended that each half of the couple gets their own attorney for drawing up a postnuptial agreement. This ensures that both parties are being represented fairly and that the agreement is as equitable as possible. 

How do I know if my postnup is valid?

The most critical factors that must be met for postnuptial agreements to be legally valid include:

• A full financial disclosure from each party
• That the agreement was entered into willingly and without coercion
• The agreement cannot be one-sided, benefiting one spouse more than the other
• The agreement cannot contain provisions pertaining to child support

What is considered marital property?

Marital assets are any property that is shared between two people who are married. In most states, any property that is acquired after two people are married is considered marital property.

Also, property that was acquired prior to marriage, but has been commingled and treated as shared during the relationship, can change from separate property to shared.