A postnuptial agreement can help married couples resolve concerns in a divorce. Here’s what to know about nullifying a postnuptial agreement.
Every jurisdiction has laws surrounding and how courts can enforce postnuptial agreements. State courts can nullify any postnuptial agreements not following state guidelines or principles of general contract law.
What is a Postnuptial Agreement?
A postnuptial agreement is a written agreement made after a marriage or civil union outlining ownership and division of assets and responsibilities in divorce or separation. A postnuptial can also modify the terms and conditions of an existing prenuptial agreement.
The adoption of “no-fault” divorce laws, allowing unions to be dissolved if a partner becomes permanently mentally incapacitated or if one partner shows the couple has “irreconcilable differences” (cannot get along), have made postnuptial agreements more common in recent years.
Related: How to Enforce a Postnuptial Agreement in California
What is the Difference Between a Postnuptial Agreement and Prenuptial Agreement?
The biggest difference between a prenuptial and a postnuptial is the timing of the agreement. Prenuptials are drafted and signed before marriage, while postnuptial agreements are signed after marriage.
Related: Prenup vs. Postnup in California: The Difference
Why Are Postnuptial Agreements Made?
A postnuptial agreement can be helpful with dividing a couple’s affairs and assets, including:
- Inheritance
- Protection of a business
- Property division and distribution
- Future assets
- Child support and/or child custody
- Alimony (financial support for your spouse)
Postnuptial agreements can protect spouses and their assets in case of divorce or separation, streamlining the divorce process and minimizing legal expenses for both parties.
Related: How to Create a Postnuptial agreement in California
Can You Nullify a Postnuptial Agreement?
Yes, a postnuptial can be “nullified,” or broken. A postnuptial agreement can be reviewed by a court if a spouse believes their partner has violated the postnup, thinks the postnup is invalid or is considering a divorce. Depending on the jurisdiction, nullifying a postnuptial agreement can be a lengthy process.
A postnup’s ruling jurisdiction can determine whether a judge may enforce the consequences of a spouse violating the postnup. Most state laws outline what constitutes a valid and enforceable postnuptial agreement, with enforcement procedures varying in level of strictness.
Judges in state jurisdictions not legally recognizing postnups cannot handle matters surrounding nor can those judges enforce any consequences of violating a postnuptial agreement.
What Makes a Postnup Nullified?
Postnups must follow basic principles of contract law, such as both parties signing a written agreement free of duress or coercion. Other postnuptial agreement requirements follow state guidelines and laws. Depending on state law, a court can deem a postnup void if:
- Not a written agreement (oral agreements are not seen as valid),
- One of the parties was not given reasonable time to read and consider the agreement,
- One party was under duress or was pressured to sign the prenup,
- One or both parties lacked financial disclosure,
- The agreement is seen as significantly unfair to one party.
Depending on the jurisdiction, some judges can nullify certain parts of a postnup, meaning parties would need to renegotiate voided sections.
What Happens After a Postnup is Nullified?
A judge will not enforce a nullified postnuptial agreement, meaning parties can either re-draft or entirely forgo the postnup. State laws may outline how marital property and assets will be split in a divorce proceeding of spouses choosing to nullify a postnup.
In community property states, spouses evenly split property or assets obtained during the marriage unless a prenuptial or postnuptial exists. Common law property states viewed spouses as state separate entities and spouses retain individual property and assets, but will evenly divide joint assets.
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