Postnuptial agreement
Encyclopedia
A postnuptial agreement is a written contract
executed after a couple gets married
, or have entered a civil union
, to settle the couple's affairs and asset
s in the event of a separation
or divorce
. It is normally "notarized
" or acknowledged, and is usually the subject of statute of frauds
. Like the contents of a prenuptial agreement, it can vary widely, but commonly includes provisions for division of property
and spousal support
in the event of divorce, death
of one of the spouses
, or breakup of marriage. In rare cases, a "prenup" may be enforceable even without a marriage, such as with a Domestic partnership
or Registered partnership.
There may be many reasons to obtain a postnuptial agreement.
, a prenuptial agreement
is only valid if it is completed prior to marriage. After a couple is married, they may draw up a post-nuptial agreement.
Postnuptial agreements must have all the elements of all contracts:
In the United States
, as with prenuptial agreements, five additional elements are typically required for a valid postnuptial agreement:
in the later portion of the 20th century. For many years, US jurisprudence followed the notion that contracts, such as a postnuptial agreement, could not be valid when executed between a husband and wife. The inability of a husband and wife to contract with one another was due to the concept of marital unity, at the time of marriage, husband and wife become a single entry or person. And since one may not enter into a contract with ones self, a postnuptial agreement would be invalid. Even after the US courts began to reject marital unity as a legal theory, postnuptial agreements were rejected as being seen to encourage divorce
.
It wasn't until the 1970s that postnutpial agreements were met with wide acceptance in the United States
. The motivating factors considered to be behind this acceptance was the increase in divorce
during the 1970s, along with the implementation of so-called "no fault" divorces, granting divorces for any reason. Upon the wave of legislative and statutory changes, postnuptial agreements began to find acceptance in American jurisprudence.
Within the body of law in the US, there are typically three kinds of postnuptial agreements:
The court distinguished postnups from prenups by pointing out that in the former case the couple are already married. A pre-nuptial agreement was no longer the price which one party might extract for his or her willingness to marry, and there is nothing to stop a married couple entering into contractual financial arrangements governing their life together, subject to the usual requirements of the absence of duress, undue influence or unfair pressure to sign. The court continued to recognise that prenups are still valid and enforceable in certain circumstances.
The court declared its assumption that each party to a properly negotiated agreement was a grown up and able to look after him or herself, whilst being aware of the risk of unfair exploitation of superior strength. The mere fact that the agreement was not what a court would have done could not be enough to have it set aside.
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
executed after a couple gets married
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
, or have entered a civil union
Civil union
A civil union, also referred to as a civil partnership, is a legally recognized form of partnership similar to marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples rights,...
, to settle the couple's affairs and asset
Asset
In financial accounting, assets are economic resources. Anything tangible or intangible that is capable of being owned or controlled to produce value and that is held to have positive economic value is considered an asset...
s in the event of a separation
Legal separation
Legal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order, which can be in the form of a legally binding consent decree...
or divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
. It is normally "notarized
Notary public
A notary public in the common law world is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business...
" or acknowledged, and is usually the subject of statute of frauds
Statute of frauds
The statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a signed writing with sufficient content to evidence the contract....
. Like the contents of a prenuptial agreement, it can vary widely, but commonly includes provisions for division of property
Division of property
Division of property, also known as equitable distribution, is a judicial division of property rights and obligations between spouses during divorce...
and spousal support
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
in the event of divorce, death
Death
Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
of one of the spouses
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
, or breakup of marriage. In rare cases, a "prenup" may be enforceable even without a marriage, such as with a Domestic partnership
Domestic partnership
A domestic partnership is a legal or personal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage nor a civil union...
or Registered partnership.
There may be many reasons to obtain a postnuptial agreement.
Legal recognition and enforceability
Under the Statute of FraudsStatute of frauds
The statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a signed writing with sufficient content to evidence the contract....
, a prenuptial agreement
Prenuptial agreement
A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other...
is only valid if it is completed prior to marriage. After a couple is married, they may draw up a post-nuptial agreement.
Postnuptial agreements must have all the elements of all contracts:
- OfferOfferOffer may refer to:* Settlement offer, an offer to end a civil lawsuit out of court* Offers, a 2005 Dutch television film* Office of Electricity Regulation , a forerunner of the current Office of Gas and Electricity Markets in Great Britain...
- AcceptanceAcceptanceAcceptance is a person's agreement to experience a situation, to follow a process or condition without attempting to change it, protest, or exit....
- ConsiderationConsiderationConsideration is the central concept in the common law of contracts and is required, in most cases, for a contract to be enforceable. Consideration is the price one pays for another's promise. It can take a number of forms: money, property, a promise, the doing of an act, or even refraining from...
- Mutual assent
- LegalityLegalityThe principle of legality is the legal ideal that requires all law to be clear, ascertainable and non-retrospective. It requires decision makers to resolve disputes by applying legal rules that have been declared beforehand, and not to alter the legal situation retrospectively by discretionary...
- CapacityCapacity (law)The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, as with prenuptial agreements, five additional elements are typically required for a valid postnuptial agreement:
- agreement must be in writing (oral promises of this kind are always prohibited)
- must be executed voluntarily
- full and/or fair disclosure at the time of execution
- the agreement cannot be unconscionable
- it must be executed by both parties (not their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgmentAcknowledgment (law)In law, an acknowledgment is a declaration or avowal of one's own act, to give it legal validity, such as the acknowledgment of a deed before a proper officer...
, before a notary public.
In the United States
Postnuptial agreements only came to be widely accepted in the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
in the later portion of the 20th century. For many years, US jurisprudence followed the notion that contracts, such as a postnuptial agreement, could not be valid when executed between a husband and wife. The inability of a husband and wife to contract with one another was due to the concept of marital unity, at the time of marriage, husband and wife become a single entry or person. And since one may not enter into a contract with ones self, a postnuptial agreement would be invalid. Even after the US courts began to reject marital unity as a legal theory, postnuptial agreements were rejected as being seen to encourage divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
.
It wasn't until the 1970s that postnutpial agreements were met with wide acceptance in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. The motivating factors considered to be behind this acceptance was the increase in divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
during the 1970s, along with the implementation of so-called "no fault" divorces, granting divorces for any reason. Upon the wave of legislative and statutory changes, postnuptial agreements began to find acceptance in American jurisprudence.
Within the body of law in the US, there are typically three kinds of postnuptial agreements:
- An agreement which will provide for the assignation of marital property at the time of death of one spouse. These agreements typically have the surviving spouse waiving any rights to property they would have had the right to inherit under a will or statutory scheme.
- Agreements that are for all purposes separation agreements. These agreements are entered into to avoid the time and cost of divorce proceedings. The disposition of property, other marital assets, custody, alimony and support and the like are agreed to by the marital partners upon separation and the agreement later, usually, incorporated into the final divorce decree.
- The one most fixed in the mind of the public, are agreements that are an attempt to affect rights in a future divorce, usually limiting or waiving alimony and/or support and the division of marital property, which includes property obtained before and after the marriage.
- AlabamaAlabamaAlabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
law presumptively considers postnuptial agreements to be valid under Ala. Code 1975, §§30-4-9 and §§43-8-72, supported by a decision of the Alabama Supreme CourtAlabama Supreme CourtThe Supreme Court of Alabama is the highest court in the state of Alabama. The court consists of an elected Chief Justice and eight elected Associate Justices. Each justice is elected in partisan elections for staggered six year terms. The Governor of Alabama may fill vacancies when they occur...
in Ruzic v. Ruzic, 549 So.2d 72 (Ala. 1989).
- AlaskaAlaskaAlaska is the largest state in the United States by area. It is situated in the northwest extremity of the North American continent, with Canada to the east, the Arctic Ocean to the north, and the Pacific Ocean to the west and south, with Russia further west across the Bering Strait...
holds postnuptial agreements valid pursuant to Alaska Statute 13.11.085 and interpreted by the Alaska Supreme CourtAlaska Supreme CourtThe Alaska Supreme Court is the state supreme court in the State of Alaska's judicial department . The supreme court is composed of the chief justice and four associate justices, who are all appointed by the governor of Alaska and face judicial retention elections and who choose one of their own...
in Brooks v. Brooks, 733 P.2d 1044, 1048 (Alaska 1987).
- ArizonaArizonaArizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...
has held via a series of court decisions in Roden v. Roden, 29 Ariz. 398, 242 P. 337 (1926), In Re Estate Of Harber, 449 P.2d 7(1969) and Spector v. Spector, 531 P.2d 176 (1975), that postnuptial agreements are valid. Arizona has declined to address postnuptial agreements via statute, but has address the issue of prenuptial agreementPrenuptial agreementA prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other...
s via statute.
- ArkansasArkansasArkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...
, like Arizona, has statute(s) that specifically govern prenutpial agreements, but none that govern postnuptial agreements. The Arkansas Supreme CourtArkansas Supreme CourtThe Arkansas Supreme Court is the highest court in the U.S. state of Arkansas. Since 1925, it has consisted of a Chief Justice and six Associate Justices, and at times Special Justices are called upon in the absence of a regular justice...
ruled in Stewart v. Combs, 243 S.W.3d 294 (2006), interpreting Arkansas Code 9-11-502 Removal of Disabilities of Married Women, that posstnuptial agreements are valid in ArkansasArkansasArkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...
under the prevailing law(s) of contractContractA contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
s and should be interpreted accordingly.
- CaliforniaCaliforniaCalifornia is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
views postnuptial agreements as valid per California Family Code Part 5, Chapter 1, §1500 which reads: "The property rights of husband and wife prescribed by statute may be altered by a premarital agreement or other marital property agreement." Additionally, §1502 provides that such agreements are to be "executed and acknowledged or proved in the manner that a grant of real property is required to be executed and acknowledged."
- ColoradoColoradoColorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
accepts the validity of postnuptial agreements under Colorado Marital Agreement Act, § 14-2-301, et seq., Colorado Revised Statutes 2002 and supported by In re Estate of Lewin, 595 P.2d 1055, 1057 (Colo.1979), which states "Nuptial agreements, whether executed before or after the marriage, are enforceable in Colorado and a nuptial agreement will be upheld unless the person attacking it proves fraud, concealment, or failure to disclose material information."
- ConnecticutConnecticutConnecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...
courts have found postnuptial agreements valid under Connecticut General Statutes Annotated Title 46b, Chapter 815e, Sec. 46b-36, which permits, by law, a married woman to contract with her husband.
- DelawareDelawareDelaware is a U.S. state located on the Atlantic Coast in the Mid-Atlantic region of the United States. It is bordered to the south and west by Maryland, and to the north by Pennsylvania...
has no statutes specifically granting or prohibiting postnuptial agreements. Like many other states, Delaware courts have relied upon a statute that provides the right to contract within a marriage, in this case the Married Woman's Act, 13 Del. C. § 311 et. seq., to support postnuptial agreements.
- FloridaFloridaFlorida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
takes a contract law approach to the matter and treats postnuptials as properly enforceable contracts, subject to the prevailing law on the interpretation of contracts, as explained in Casto v. Casto 508 So.2d 330 (Fla. 1987).
- In GeorgiaGeorgia (U.S. state)Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
, postnuptial agreements are considered valid. However, it is up to the discretion of the trial judge as to whether or not the agreement be approved and incorporated into the parties' divorce decree. The trial judge, according to the Georgia Supreme Court should employ basically three criteria in determining whether to enforce such an agreement in a particular case: (1) was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) is the agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable? If the answer to all three criteria is "no", the postnuptial agreement is generally valid.
- IdahoIdahoIdaho is a state in the Rocky Mountain area of the United States. The state's largest city and capital is Boise. Residents are called "Idahoans". Idaho was admitted to the Union on July 3, 1890, as the 43rd state....
allows for postnuptial agreements, referred to as "marriage settlement agreements", to be valid if it be in writing, that it be executed and acknowledged in the same manner as conveyances of land, and if it affects real property, that it be recorded in the county in which any affected real property is located. Idaho Statutes §32-915 to §32-920.
- IllinoisIllinoisIllinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
under its Illinois Marriage and Dissolution of Marriage Act (750ILCS5/) permits postnuptial agreements to be incorporated into divorce decrees if it meets the requirements of the Act.
- In IndianaIndianaIndiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is...
postnuptial agreements are presumptively valid under Indiana Code Title 31- Dissolution of Marriage and Separation Additionally, the Courts have found that public policy of IndianaIndianaIndiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is...
"favors the amicable settlement by written agreement of the property rights of those citizens who are having their marriages dissolved." However, such agreements must be approved by the court, and it is only after such apporval can they be considered valid. Per Atkins v. Atkins, 534 N.E.2d 760, 762 (Ind. Ct.App. 1989) "The court should do [incorporate postnuptial agreements] so unless it determines that the agreement was the product of some unfairness, unreasonableness or manifest inequity in its terms or that it was procured through fraud, misrepresentation, coercion, duress, or lack of full disclosure. A settlement agreement that has not been approved by the dissolution court and incorporated and merged into the decree has no legal efficacy."
- KansasKansasKansas is a US state located in the Midwestern United States. It is named after the Kansas River which flows through it, which in turn was named after the Kansa Native American tribe, which inhabited the area. The tribe's name is often said to mean "people of the wind" or "people of the south...
has ruled on the subject of postnuptial agreements: "The general rule in this state is that contracts made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intentions of the makers and to uphold such contracts where they are fairly and understandingly made, are just and equitable in their provisions, and are not obtained by fraud or overreaching. Generally speaking, such contracts are not against public policy, although a different rule obtains where the terms of the contract encourage a separation of the parties."
- KentuckyKentuckyThe Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
generally accepts prenuptial agreements under Kentucky Statute Title XXXV §403.180, "(1) To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for maintenance of either of them, disposition of any property owned by either of them, and custody, support and visitation of their children."
- LouisianaLouisianaLouisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
(perhaps because it follows a legal traditionLouisiana lawLaw in the State of Louisiana is based in part on civil law. Louisiana is unique among the 50 U.S. states in having a legal system partially based on French and Spanish codes and ultimately Roman law, as opposed to English common law...
different from other 49 states) has codified postnuptial agreements, or "matrimonial agreements" as they are known in Louisiana, under Louisiana Civil Code Book III, Title VI, Chapter 1, Art. 2325, "Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law."
- MarylandMarylandMaryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
by a string of case law has accepted the validity of post nuptial agreements as contracts to be interpreted by the current state of contract law in MarylandMarylandMaryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
.
- In MassachusettsMassachusettsThe Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
, postnuptial agreements have been found valid under Massachusetts Statutes, Chapter 209 §2. Recently, on July 16, 2010 in Ansin v. Craven-Ansin, the Massachusetts SJC for the first time enforced a postnuptial agreement.
- MichiganMichiganMichigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
has abrogated the concept of marital unity via statute, under Michigan Code §557.23 Common law disability of married women to contract abrogated . Michigan has further extended this concept under Michigan Code 557.24 Contract by married woman, which in part states "A married woman may enter into a contract with respect to her separate property...". Further, Rockwell v. Estate of Leon Rockwell, 24 Mich. App. 593, 180 N.W.2d 498 (1970) states that postnuptial agreements are no invalid per se and are to be examined under existing contract law as it is understood in Michigan.
- MinnesotaMinnesotaMinnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
allows for postnuptial agreements under Minn. Stat. Ann. §519.11. However there are some provisions governing postmarital agreements. Minnesota Statutes explicitly provide that, in order to be enforceable, each spouse must at the time of execution, be represented by separate counsel.
- MississippiMississippiMississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...
like many other states, has abolished the concept of marital unity and provided for women to contract with their husbands under Mississippi Code § 93-3-1 Mississippi case law also supports post nuptial agreements so long as the agreement does not dispose of the matter of child custody and support. If the post nuptial agreement does address child custody and support, Mississippi courts have traditionally invalidated the entire post nuptial agreement.
- The MissouriMissouriMissouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
Supreme CourtSupreme Court of MissouriThe Supreme Court of Missouri is the highest court in the state of Missouri. It was established in 1820, and is located in Jefferson City, Missouri. Missouri voters have approved changes in the state's constitution to give the Supreme Court exclusive jurisdiction- the sole legal power to hear -...
has ruled that postnuptial agreements are not against public policy, making them presumptively valid. In determining the enforceability of the post nuptial agreement, Missouri courts use the same standard when examining the enforceability of a pre-nuptial agreement. The post nuptial agreement must be entered into "freely, fairly, knowingly, understandingly and in good faith and with full disclosure."
- MontanaMontanaMontana is a state in the Western United States. The western third of Montana contains numerous mountain ranges. Smaller, "island ranges" are found in the central third of the state, for a total of 77 named ranges of the Rocky Mountains. This geographical fact is reflected in the state's name,...
finds postnuptial agreements valid under Montana Code Annotated §§40-2-301 through 311.
- NebraskaNebraskaNebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....
case law has stated that postnuptial contracts are proper contracts to make reciprocal or mutual wills, and such contracts are valid in Nebraska.
- NevadaNevadaNevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its...
, under its statutes, Nevada Revised Statutes Title 11, Chapter 123 et seq. and the dicta found in Love v. Love, 114 Nev. 572, 959 P.2d 523 (1998), Daniel v. Baker, 106 Nev. 412, 794 P.2d 345 (1990) and Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978), postnuptial agreements are valid.
- New YorkNew YorkNew York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
law will enforce postnuptial agreements, Domestic Relations Law §236(B)(3) states that three conditions must be meet in order for the agreement to be valid and enforceable. The first is that the agreement must be in writing; second it must be subscribed to by the parties and; third it must be proven or otherwise acknowledge in the same manner as a deed or other legal record. However, New YorkNew YorkNew York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
General Obligations Law §5-311 voids any postnuptial agreement that has the intent to relieve either the husband's or wife's obligation to support the other in a manner to prevent the other from becoming a "public charge."
- OhioOhioOhio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
bans all postnuptial contracting under Ohio Rev. Code Ann. § 3103.06 which reads “A husband and wife cannot, by any contract with each other, alter their legal relations, except that they may agree to an immediate separation and make provisions for the support of either of them and their children during the separation.” Additionally, OhioOhioOhio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
courts have traditionally refused to enforce postnutpial agreements executed in other states if the couple in question is domiciled in Ohio.
United Kingdom
Post-nuptial Agreements are now binding in the United Kingdom following the Privy Council judgment in [MacLeod v MacLeod] (2008). Agreements made during marriage or civil partnership which provide for a future separation can be enforced by the courts under the same principles as separation agreements under sections 34 to 36 of the Matrimonial Causes Act (1973).The court distinguished postnups from prenups by pointing out that in the former case the couple are already married. A pre-nuptial agreement was no longer the price which one party might extract for his or her willingness to marry, and there is nothing to stop a married couple entering into contractual financial arrangements governing their life together, subject to the usual requirements of the absence of duress, undue influence or unfair pressure to sign. The court continued to recognise that prenups are still valid and enforceable in certain circumstances.
The court declared its assumption that each party to a properly negotiated agreement was a grown up and able to look after him or herself, whilst being aware of the risk of unfair exploitation of superior strength. The mere fact that the agreement was not what a court would have done could not be enough to have it set aside.
Notable examples
- Financier Wilbur RossWilbur RossWilbur L. Ross, Jr. is an American investor known for restructuring failed companies in industries such as steel, coal, telecommunications, foreign investment and textiles. He specializes in leveraged buyouts and distressed businesses. In 2011, Forbes magazine listed Ross as one of the world's...
and Betsy McCaughey RossBetsy McCaughey RossBetsy McCaughey , formerly known as Betsy McCaughey Ross, was the Republican Lieutenant Governor of New York from 1995 to 1998, during the first term of Governor George Pataki. She unsuccessfully sought the Democratic Party nomination for Governor after Pataki dropped her from his 1998 ticket.An...
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