Introduction – Post-marital/Separation Agreements

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In this post, I will provide you with basic information regarding Post-marital/Separation Agreements. Most people are not familiar with the term Post--marital Agreement, yet it is identical to and operates in the same manner as a Separation Agreement.

Preparing a Post-Marital agreement is a process that can be a helpful experience for some and an unpleasant experience for others. However, having a post-marital agreement in place is better than having a Court of Law determine what’s in your best interest.

We have assembled a brief Q&A regarding the basics related to the planning and preparation of your Post-Marital Agreement.

What is a Post-Marital Agreement?
A post-martial agreement is an agreement made between spouses after marriage. The post-martial agreement is similar to the pre-nuptial agreement; however, it is entered into after the marriage of the parties, and normally when circumstances have changed. It is a way for couples to legally resolve property distribution matters, divide debt, and provide for or deal with children. The agreement must be in writing and signed freely and voluntarily by both parties, with fair and reasonable terms free from fraud and duress to be enforceable in court. The agreement may provide specific financial benefits to ensure that if your spouse fails to live up to their end of the agreement, a court will enforce it.

Should I execute a post-marital agreement?
The post-marital agreement is growing in popularity and as a result many more individuals are deciding to enter into post-martial agreements for various reasons. Some of those reasons have been: failure to create a pre-nuptial agreement; change in financial status; disagreement about finances and want a resolution; starting a business, and a host of other reasons for making the decision to create a post-marital agreement.

However, a couple should be aware of the advantages and disadvantages involved with a post-marital agreement. Most use the agreement as a blue print for eventual divorce, but this type of agreement has been used as an efficient and effective way to save a marriage. The very process of working with your spouse on this type of arrangement is a positive exercise for most couples.

What types of things can a post-marital agreement cover?
Just like a pre-nuptial agreement, a post marital agreement may cover a variety of issues:
• Alimony/spousal support
• Property rights (real and personal)
• Personal rights
• Household responsibilities
• Child Custody and Visitation
• Child Support & Support Guidelines
• Child-rearing issues
• Debts
• Health Insurance coverage
• Life Insurance coverage
• Retirement & Survivor benefits
• Business Interests
• Bank Accounts & Investments
• Income Tax Returns
• Jurisdiction/Controlling Law
• Merger/Incorporation clauses
• Attorneys fees
• Waiver clauses

Should I seek the services of an experienced Attorney?
Yes, you should seek the services of an experienced Attorney to draft a post-marital agreement that meets your specific needs. We also suggest that each spouse obtain independent counsel to ensure the rights and interests of both of you are fairly represented.

Can I revoke a post-marital agreement?
A Post-Marital Agreement is revocable if signed in writing by both parties, freely and voluntarily absent fraud and duress.

Can it be modified?
Certain provisions may be modified UNLESS there is an express waiver or provision stating that the particular provision is not subject to court modification. Additionally, a provision may be included in the agreement that provides that modification will not occur except on the occurrence of an express condition (cohabitation by the supported spouse, substantial change in circumstances).

Provisions dealing with child support/custody/care/education and visitation are always going to be modifiable by a Court if in the “best interests of the child,” even if there is a waiver or other provision providing otherwise.

How is it enforceable?
A post-marital agreement standing alone has the same force as an independent contract; however, if the separation agreement is incorporated or merged into a divorce decree, then the type of enforcement varies.

If incorporated into the divorce decree, the Post-Marital agreement will be enforceable via contempt proceedings and as an independent contract.

If merged with the divorce decree, the agreement will only be enforceable through contempt proceedings.

Separation agreements provide a way to ease tension and have become favored by the courts as a peaceful means of terminating marital strife and discord. Although many may see entering into a separation agreement as a romance killer, or a white line to divorce; it has the same purpose of a pre-nuptial agreement; to lay out the rights, duties and responsibilities of the parties during and upon termination of the marriage through death or divorce. Even if the underlying interest is to obtain a divorce, a separation agreement is a way to work it out without having a Judge determine the terms of your separation.


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PLEASE LOOK FORWARD TO OUR NEXT BLOG POSTING SCHEDULED FOR TUESDAY, JUNE 15, 2010