Test Your Postnup IQ

You've heard of a prenuptial agreement, but how much do you know about a postnuptial agreement made after you're already married? Do you know what should and shouldn't be included? Test your postnup IQ with the questions below from attorney Ann Margaret Carrozza.
  1. My husband asked me to sign a postnuptial agreement. This means he wants a divorce. T/F? Probably false. Now that all states have so-called “No Fault Divorce,” either party can opt out of a marriage at any time. However, sometimes a party tries to hammer out a favorable property division within a postnup prior to filing for divorce. Depending upon the timing between the postnup and the divorce filing, this could invalidate the postnup on the grounds of fraudulent inducement.   2. We are on a tight budget. Can we share an attorney? No. Postnuptial agreements have been invalidated by courts when both parties were not independently represented by counsel of their own choosing. A better way to keep costs down is for each party to come up with a list of their marital problems as well as proposed compromise solutions prior to meeting with the attorney. This can greatly reduce the dreaded “billable hours."
  3. A postnuptial agreement only benefits the wealthy spouse. T/F? False. A good postnuptial agreement should protect both spouses. A postnup which is completely one sided will probably be invalidated by the court. If, for example, one party put his or her career on hold or turned down out-of-state promotion opportunities for the sake of the marriage, these are factors that should be addressed within the postnup. Ideally, this document will ensure the financial security of both spouses in the event that the hoped for reconciliation does not work out.   4. Happily married couples don’t need a postnup. T/F? False. I encourage all of my estate planning clients to create postnups. Even if a marriage defies the statistical divorce perils, it will end at death. I have seen way too many widows and widowers lose their assets to ill-advised marriages entered into while they were still grieving the loss of their first spouse. Within a postnup, each spouse can promise to enter into a prenuptial agreement prior to any possible future remarriage in order to protect the assets from the first marriage. This protects not only the children of the first marriage, but also the surviving spouse from being taken advantage of by mercenary characters.   5. A postnuptial agreement only deals with financial issues. T/F?  
False. A postnup provides a contractual framework to deal with any and all sources of conflict and unfulfillment. Lifestyle clauses dealing with overspending, gambling, weight gain, substance abuse issues, infidelity, TV time and social media parameters can be addressed within a postnup. This is why I like to think of a postnuptial agreement as a couple’s mission statement or Love Contract.

Ann Margaret Carrozza is an Elder Law and Estate Planning Attorney who served as a New York State Assemblywoman. She is a legal contributor to the Dr Phil show. www.mylawyerann.com
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