Post-Nuptial Agreements, also known as Post-Nups

The first question people ask is “how can I make sure my post-nuptial agreement is enforceable?” Sadly, there is no way to make sure. In the absence of an agreement, the validity of a post-nuptial agreement is ultimately in the hands of the Court. The parties are advised to follow at least the requirements that apply to prenuptial agreements: independent representation by separate attorneys, compliance with waiting periods, and full disclosure.

In general, parties can enter into a post-nuptial agreement:

  • To clarify their ownership of property;
  • To change (transmute) the character of property from separate to community or from community to separate or from separate of one spouse to separate of the other spouse; or
  • To amend or revoke a premarital agreement.

This means, for example, that a spousal support waiver is likely unenforceable in a post-nuptial agreement.

There are numerous defenses to enforcement of post-nuptial agreements that sometimes prove successful, such as evidence that:

  1. One spouse lied or misrepresented important facts to the other;
  2. One spouse concealed assets or lied about their value while negotiating a post-nuptial agreement;
  3. One spouse threatened or hurt the other spouse to convince him or her to sign the agreement;
  4. One spouse lacked capacity: i.e. was disabled or suffered a cognitive impairment at the time of signing;
  5. One spouse gave up his or her rights for what amounts to little or nothing, without understanding what he or she was giving up. However, if that spouse is represented by an attorney and states in writing that he or she understands the consequences, the defense is much harder to prevail on.
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