Marriage is one of the greatest commitments between two people. Unfortunately, statistics show that around 44 percent of all marriages end in divorce and the divorce rate increases to 70 percent for second marriages.
Marriages can end for several reasons, many of which are unforeseen and unpredictable. One of the best ways to avoid a messy divorce is to have a postnup. Even if a marriage seems that it will never end, it’s better to be prepared in case things change as time goes on.
What Is a postnup?
By definition, a postnup is an agreement that can only take place after a marriage has occurred. Similar to a prenup, a postnup is a legally binding document that details a list of assets, including property, money, businesses and other physical and monetary property owned by each person. In the event that a divorce takes place, lawyers will easily be able to assign and divide the assets in the marriage between the two parties, therefore protecting both parties from being taken advantage of by the other.
The Texas Family Code refers to a postnuptial agreement as a Partition and Exchange Agreement. It partitions community property into separate and can exchange community for separate property.
The cost of a postnup can vary depending on how complicated the existing assets are to manage. However, if a divorce does occur, a large amount of money can be saved on legal proceedings thanks to the postnup. Although a postnup is not the most romantic thing to consider, they can improve the quality of the marriage by adding another element of trust and protection.
If you’re asking yourself if you need a postnup, here are a few questions to consider for a clearer understanding.
Do you have children from a previous marriage?
If you’ve remarried and have children from a previous marriage, a postnup is highly advised. When two families come together, especially if your current partner also has children, a partition & exchange agreement can make probate much simpler and minimize litigation between children and the surviving spouse.
By investing in a postnup, you can easily prove what assets you had prior to the marriage. This will mean that if divorce happens, or when you pass away, your children will be able to inherit the assets and estate they are legally entitled to.
Did you consider drafting a prenup?
This is one of the most common reasons why most couples consider a postnup. The very idea of divorce is not something people like to consider prior to getting married. And this is completely understandable, which is why many choose to wait until after their wedding day to discuss the matter.
Do you own a business?
If you’re a business owner it’s recommended that you suggest a postnup. This will enable you to protect both your personal and business incomes, as well as any assets the business has both before and after the marriage. In the event that no postnup is signed, your spouse may be able to claim some of your business and its income in a divorce.
Do you own anything you couldn’t bear to lose?
Whether particular possessions hold a high monetary value or simply have sentimental value, these belongings should be protected. For example, if you have purchased a piece of property such as your childhood home, or have a cherished family heirloom, it’s possible that you could lose this property during a divorce. By drafting a postnup, you can ensure that the property would remain in your possession.
What are the other benefits of drafting a postnup agreement?
One of the biggest benefits is that you can ensure a fair and equitable outcome for both parties. This can include alimony payments, marital debts and who pays what after a divorce, as well as how to divide property and other assets in the event that one of the spouses passes away.
How do I go about getting a postnup?
There are several things you must consider and achieve whilst making your way through the postnup process. These include;
• Written Acceptance – An oral confirmation or agreement will not stand in a court of law.
• Disclosure – Texas law requires disclosure of assets and debts unless a party waives, in writing, the right to such disclosure.
• Agreement – You cannot force, threaten or trick the other party into accepting a postnup. A defense to a Texas Partition & Exchange agreement is that it was not signed voluntarily.
• Signed – The postnup document must be signed and dated to note each party’s agreement. It should also be notarized to confirm no signature was forged, but notarizing is not legally required.
It’s of the utmost importance that a respected and reputable lawyer that deals in postnuptial agreements create the document. This is the only way to be sure that there is nothing left to chance and that all facets of the document are legally binding and correct.
If you set about creating a postnup on your own, any details left out or not written within the legal guidelines can render your postnup void. By investing in the help of a lawyer you can be safe in the knowledge that everything is as it should be.
As with anything in life, it’s always best to be prepared. By agreeing to a postnuptial agreement, that doesn’t mean that you will get divorced or that you believe divorce is going to happen in the future. It simply means you are being prepared. You never know what the future may hold, and many things that seem impossible can happen.
Many more marriages end in divorce than houses burn down, yet people cannot imagine not having homeowners insurance. Sadly, a marriage is more likely to end in divorce than a house is to be destroyed. Most ex-spouse’s houses are still intact.
By investing in a postnup, you can protect your assets that you, your loved ones and your children are entitled to, giving them and yourself the best outcome possible. Always remember that no matter what your situation, a postnup is a form of protection, and hopefully you never have to use it.