A postmarital agreement (sometimes called a postnuptial agreement or “postnup” or a reconciliation agreement) is a document drafted after a couple is married that defines the respective rights and responsibilities of each spouse for the duration of the marriage and what happens if the marriage ends in divorce or legal separation, or after one of the spouses dies. Financial issues are usually the focus of a postnup. A postnup may list and then address the post-divorce distribution of:
- Appreciation/gains on assets or property
- Expected income/rents/dividends
As postmarital agreements are usually entered into when circumstances in the marriage have changed, the agreement may create incentives towards certain results or penalties for certain actions. For example, the agreement may provide that the husband must pay the wife maintenance at a certain high figure should the parties divorce following the husband’s infidelity. The terms of the agreement will be enforceable so long as the terms and the execution of the document are in compliance with contract law.
Postnups are often utilized in the following circumstances:
- To exclude property from the marital estate. The Kentucky domestic relations laws presume that property acquired during a marriage is marital property, which would be divided “in just proportions” should the parties divorce. A couple is allowed to overcome this presumption and designate certain property as separate “by valid agreement.” See KRS 403.190(2)(d).
- To control certain behaviors: adultery, drinking, over-spending, etc.
- To resolve financial issues. Many divorces are the result of monetary disagreements or difficulties. Some people can stay married so long as these financial concerns are settled. However, this must be accomplished via agreement because merely separating finances (ex: through separate bank accounts) does not prevent all assets from being considered marital and subject to division at divorce.
- To account for a post-marital change in financial status. The agreement may address how an inheritance, profit from a sold property or business, change in salary, etc. is to be considered in the event of divorce.
- To resolve issues concerning the children. The major issues to be decided post-divorce are child custody, child support, and timesharing/visitation. However, the parties may also define how the children will be raised while the marriage is intact: what schools to go to, what religion to practice, etc.
- To overcome a conflict or a stale relationship, or even prevent a potential divorce. By settling the underlying issues through a legal document where both parties make promises and face consequences for failing to uphold those promises, sources of past tension can be overcome. Some couples have found that the process of working through contentious issues with a spouse and drafting such a document can actually save a marriage.
- To reduce or avoid later divorce litigation, which can be an expensive and drawn-out process. And, relatedly, to ensure that the terms of the divorce are defined by the parties rather than by the Court.
- To resolve miscellaneous concerns that are important to the parties. Examples may be:
• Setting a budget or allowed expenses
• Defining who is responsible for which chores
• Times and frequency of visits by in-laws
• Amount of time each spouse is allowed to go out with friends without the other present
• Pet custody should the parties separate
Frequently Asked Questions
- Are postnuptial agreements allowed in Kentucky?
- As is the case with premarital agreements, the Kentucky Revised Statutes do not currently contain a provision directly regarding postnups. The statute pertaining to property division at divorce, KRS 403.190, acknowledges that the default rules determining what is marital property may be overcome “by valid agreement of the parties.” Furthermore, postnups tend to help “[p]romote the amicable settlement of disputes that have arisen between parties to a marriage.” KRS 403.110(2).No matter what the agreement is named, if the essence of the contract is to try to keep the marital relationship intact, it will be upheld. See, e.g., Whalen v. Whalen, 581 S.W.2d 578 (Ky.Ct.App. 1979).All that being said, a postnuptial agreement is a contract between spouses, and people are free to contract over just about anything, the key matters within a marriage being no exception.
- Can I have a postnuptial agreement if my spouse and I already have a premarital agreement?
- Yes, though the latter agreement must take the former into account. The terms of the premarital agreement can be changed by the postmarital agreement only if the postnup follows the prenup’s terms on modification.
- How can I be sure the postnup will be valid/enforced?
- A postnup is worthless if it won’t be upheld by the other party and/or enforced by a court. Should divorce occur, the other party might ignore a postnup drafted haphazardly, or without the assistance of a lawyer.Through a variety of legal opinions, Kentucky courts have demonstrated what they require of a prenuptial agreement for it to be enforced. Presumably, the same criteria would be required of a postnuptial agreement. For instance, there must be full disclosure by both parties, particularly of all held assets. Neither party must be under duress or compulsion when the agreement was entered, and the agreement must be fair to both parties when enforcement is sought.Attorneys are familiar with these and other legal requirements and can make it far more likely that a prenup is later enforced. An experienced attorney can be sure the agreement is unambiguous and that all formalities are complied with.
- If there is a postnup, do the Kentucky family law statutes still apply?
- Kentucky courts have acknowledged that parties may contact around/out of the default provisions in the Kentucky statutes regarding maintenance and property division. Where there is a conflict between the statute and the terms of the postnup, the postnup will govern if otherwise enforceable.Aside from maintenance and property division issues, a postnup can define other financial considerations, such as the payment of medical insurance or attorney’s fees in a divorce action. However, the Kentucky courts always have the final decision on matters pertaining to children: child support, child custody, and child visitation/timesharing. That is, a private agreement cannot overcome statutory law on these issues because they are determined by “the best interests of the child.” See KRS 403.270.
- Does the postnup need to be in writing?
- Yes. To prove the contract the postnup must be in a writing signed by both parties.
- Can a postnup be modified after it is created?
- This largely depends on the document itself. A well-drafted postmarital agreement considers whether and how certain provisions may be modified. Usually it can only be modified by a separate written agreement signed by both parties. But even if the document expressly precludes modification, or only upon circumstances that have not occurred, terms pertaining to the children – child support, child custody, and child visitation/timesharing – are always modifiable by the Court.
- Can a postnup be revoked after it is created?
- Yes. Like any other written contract, a postnup may be revoked if both parties abandon and/or destroy the written document, or jointly execute a written revocation.
Legal Services Offered and Cost
Legal fees: $800 flat fee for drafting agreement and up to one hour of discussion time with an attorney in person, on the phone, or through the internet
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