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What is a Postnuptial Agreement?



What is a Postnuptial Agreement?

You don’t enter a marriage with a pessimistic perspective on how it will turn out. Most couples get married, hoping that they’ll be together forever, but the reality for many is that the union won’t last, which is why it’s worth looking into signing a postnuptial agreement.

But what is a postnuptial agreement? You’ve probably heard about prenuptial agreements before, but a postnuptial agreement may be something new to you.

In this article, we’ll talk at length about what postnuptial agreements are and how they work. We’ll also discuss whether they are options you should consider in your marriage. Please read on to learn more about the importance of the postnuptial agreement.

What Is a Postnuptial Agreement?

Marriage represents the legal union of two individuals. Upon getting married, the people involved form a partnership recognized by the law. As part of entering that partnership, the two spouses agree to share their assets.

In situations where the married individuals stay together, the sharing of assets becomes a non-issue. Not all marriages remain intact, however, and the involved parties may seek a divorce for one reason or another.

Throughout the divorce proceedings, they will discuss the subject of dividing assets. That is when the conversation can become contentious. Considering they discuss money, properties, and other assets, it’s not surprising to see both sides fighting for what they believe they deserve.

This is where the postnuptial agreement can prove helpful and valuable.

A detailed postnuptial agreement will get rid of the need for the two parties to bicker about dividing their assets. It may also lay out plans for how to deal with other matters related to the marriage. Having an agreement such as that in place will help expedite the divorce proceedings and prevent one side from taking advantage of the other.

How Does a Postnuptial Agreement Differ from a Prenuptial Agreement?

Inevitably, discussions involving postnuptial agreements will also lead to talks about prenuptial agreements. So, how do those two agreements differ from one another?

The biggest difference is the timing when they completed the two agreements. Prenuptial agreements are signed prior to the marriage, whereas the postnuptial pacts are after the ceremony.

They may also differ at times in terms of the representation of the two parties. For prenuptial agreements, the two parties must have different attorneys. The two parties can work with the same attorney when putting together a postnuptial pact, but they are advised to work with different legal professionals.

One more differentiating factor between prenuptial and postnuptial agreements is how common they are. According to this article from The Plunge, prenuptial agreements are way more common than postnuptial agreements.

That said, the article also acknowledges that postnuptial agreements are becoming more common. The day may come when both become routine elements of getting married.

What Are the Details Included in Postnuptial Agreements?

The contents of a postnuptial agreement must be detailed. They should clearly outline how you and your spouse want matters if the two of you divorce.

In this section of this article, we’ll discuss the details commonly included in postnuptial agreements. Keep them in mind to ensure that you don’t leave out something important

The Terms of Asset Division

Arguably the most important details included in any postnuptial agreement are the ones that outline how asset division will work. Be as specific as you can be when providing these details.

Provide specific monetary figures and clearly indicate which properties and other assets go to which spouse. There’s no such thing as being too meticulous in your postnuptial agreement. Lay everything out in detail so they cannot contest them during the divorce proceedings.

The Handling of Debt

After getting married, new couples may take out loans to buy a new home or start a new business. Both parties may have also accumulated credit card debt throughout the marriage.

The two sides need to agree on how to handle those debts following the divorce. They need to agree on who will be responsible for which loan or how the payments will work if both will share the responsibility of all the debts.

The Transfer of Assets if One Party Dies

It’s not the most pleasant topic to talk about, but it is one worth broaching. Unexpected deaths happen all the time, and it’s important to acknowledge that in your postnuptial agreement.

Indicate how you wish to handle certain assets if you die unexpectedly during the marriage. Your spouse should do the same thing. Including those details in a postnuptial agreement will make a potentially difficult time a bit easier to manage.

The Terms of Spousal Support

Spousal support is a topic that gets a lot of attention during divorce proceedings. One side may want the other party to pay X amount while the other is saying that the amount requested is too high.

Those discussions can break down and become acrimonious in a hurry. Prevent things from heading in a bad direction by indicating how to handle spousal support in the postnuptial agreement you and your spouse sign.

Can the Terms of Custody and Child Support Be Included in the Postnuptial Agreement?

Given that custody and child support are also often talked about during the process of divorce, one might assume that those topics can also be addressed in a postnuptial agreement. In many cases, though, it may not enforce the terms of custody and child support.

Established laws and the courts themselves are always looking out for the best interests of the children involved in the marriage. The courts will evaluate the situation first before deciding regarding custody and child support. Regardless of how you and your spouse laid things out in the agreement, the courts can still get involved on behalf of the children.

How Can Both Sides Ensure That a Postnuptial Agreement Is Valid?

After you and your spouse come to a mutual agreement that drafting a postnuptial agreement would be best, the two of you now need to cooperate to ensure that it will hold up in a court of law. Keeping a few things in mind when crafting and finalizing the agreement will be crucial to ensuring its validity.

How the Two Parties Are Involved

The two of you are signing a postnuptial agreement. The key word there is “agreement,” meaning the two sides must be amenable to the provisions of the agreement.

If the court finds that one party was not given ample time to review the agreement or was forced to affix their signature while being threatened in some way, the agreement may wind up invalidated. It’s important that both sides truly collaborate on putting the agreement together because the court may ignore it otherwise.

The Postnuptial Agreement Is Not in Writing

When it comes to legal matters, it’s always important to get things in writing. Placing that document in front of the judge to examine increases the chances they will honor it during the divorce. Don’t forget about this when you’re working on the postnuptial agreement together with your spouse.

The Postnuptial Agreement Lacks Accurate Details

Postnuptial agreements that contain inaccurate information will not hold up in court. Before deciding if you want the agreement honored, make sure that it contains only accurate information.

You should also check to see if it mentions all the pertinent facts, so they are accounted for in the division of assets. To ensure fairness, both parties need to mention everything.

The Postnuptial Agreement Contains Invalid or Unreasonable Provisions

We have a lot to discuss here, so this is going to be a longer entry than the previous ones. When crafting the postnuptial agreement, you and your spouse need to outline provisions that are valid and reasonable.

First, the postnuptial agreement must be cognizant of the laws in the area. Unbeknown to you and your spouse, the agreement you created may be disregarding state laws. Once that happens, there’s no chance the court will acknowledge it.

As for the unreasonable provisions, they often come into play when discussing matters related to money. From a financial perspective, the agreement may be favoring one side over the other, and the court will not allow that.

When deciding how to divide your finances, make sure that both sides get a fair share. That will increase the chances of the court accepting the agreement. It’s the same thing with your other assets, so take the time to divide those fairly.

When Should You Consider Creating a Postnuptial Agreement?

Because prenuptial and postnuptial agreements are not commonly accepted elements of marriage at this point in time, bringing up the topic of signing one to your spouse can be a tricky proposition. Despite that, though, there are still reasons for you to consider drafting a postnuptial agreement.

Let’s talk about what those reasons are below.

You Want to Ensure Your Children Receive a Fair Share of Your Assets

In some cases, when two people get married, it’s almost like two previously separate families becoming one. You may have children from an earlier marriage, and the same may be the case for your spouse.

It’s not unreasonable for both of you to watch out for your children first. To do so, you may create a postnuptial agreement. Clearly indicate how you want your assets distributed so that your spouse and your children receive a fair amount.

You Want to Protect Your Assets

If you and your spouse already had significant assets before getting married, both of you may be interested in keeping them separate. You may want to keep any business ventures that you started on your own to yourself, and the same could hold true for your spouse.

In a situation such as that, the postnuptial agreement could prevent the divorce from getting any messier than it needs to be. The two of you can retain the assets you originally had prior to the marriage, and disputes won’t be necessary.

You Suddenly Received a Large Inheritance

You should also consider creating a postnuptial agreement if you recently received a large inheritance. That money was left to you by a loved one. You should spend it as you see fit.

Without a postnuptial agreement, though, they will treat the inheritance as another one of your joint assets. They may also divide it equally if you and your spouse end up divorcing. If you want to prevent that from happening, you must indicate that you received an inheritance in the postnuptial agreement.

You Did Not Want to Deal With Creating a Prenuptial Agreement

Planning a marriage can be a stressful and chaotic undertaking. You have so many things to worry about, including the venue, the catering, the guests, and that still doesn’t account for everything.

During all that, trying to draw up a prenuptial agreement can prove impossible to pull off.

Not everyone is open to the idea of signing up for a prenuptial agreement. Your spouse may mistakenly see it as a sign that you don’t have a lot of confidence in your marriage, and you don’t want that.

You Want to Secure Your Assets while Giving Your Marriage Another Try

According to Investopedia, there are cases where some couples will sign a postnuptial ahead of one more reconciliation attempt. The two parties are still trying to save their marriage, but they also both acknowledge that divorce is a real possibility.

At that point, you don’t have much to lose from signing a postnuptial agreement. Even if the reconciliation attempt does not work out, the agreement can still prove beneficial as it helps speed up the divorce proceedings.

You need to be detailed and cautious when putting together a postnuptial agreement. If you’re unsure about how to approach creating that kind of document, then please feel free to contact us at the Schill Law Group. Reach out to us today to ensure that the postnuptial agreement you enter is fair to both you and your spouse.

What Does the Uniform Marriage and Divorce Act Do?

What Does the Uniform Marriage and Divorce Act Do?



What Does the Uniform Marriage and Divorce Act Do?

Getting married is one of the most important decisions of your life and deserves to be considered carefully and thoughtfully. Unfortunately, even if you truly believe that you’ve found the right partner, some relationships don’t work out for one reason or another, and that is where the Uniform Marriage and Divorce Act can prove helpful.

The Uniform Marriage and Divorce Act has proven to be a monumental piece of legislation. It has continued to affect the lives of millions of Americans up to this day.

For this article, we’ll take a closer look at the Uniform Marriage and Divorce Act and how it has specifically impacted the residents of Arizona. You can also learn more about divorce proceedings and the things you need to consider if you want to go through with that.

What Is the Uniform Marriage and Divorce Act?

The Uniform Marriage and Divorce Act, which is also sometimes referred to as the Model Marriage and Divorce Act, was drafted up back in 1970 and was later amended in 1973. It was the work of the National Conference of Commissioners of Uniform State Laws, otherwise known as the NCCUSL. Along with the NCCUSL, committee members appointed by the American Bar Association were also tasked with working on the statute.

Found within the Model Marriage and Divorce Act are clear definitions of both marriage and divorce. The idea behind the act was to come up with laws concerning marriage and divorce that state legislatures across the country could adopt.

The NCCUSL hopes that the model statute will eventually be adopted in all states. If that happens, it will simplify laws concerning marriage and divorce further and will reduce the pressure on judges to make important decisions regarding personal relationships.

So far, the act has not been adopted yet by all states, but Arizona is following its guidelines.

Since its creation, the Uniform Marriage and Divorce Act has had a profound impact on marriage and divorce across the country. Perhaps its most notable contribution has been the introduction of “irreconcilable differences” as potential grounds for divorce.

We’ll get into what “irreconcilable differences” are a bit later in the article. For now, let’s focus first on no-fault divorce.

divorce paperwork

The Importance of No-Fault Divorce

There was a time in the United States when no-fault divorces were not permitted, and that was problematic for many for a variety of reasons.

Back then, couples who were seeking a divorce had bigger hurdles to overcome. Divorce proceedings essentially required one party to be at fault, and that would then serve as the grounds for divorce. The fault in question could be one party committing adultery, committing a felony, or other acts of that nature.

Now, the catch was that only one party should be at fault for the divorce proceedings to move forward. If the court found that both parties were at fault for their marital problems, then the union would be preserved. The divorce proceedings could also be derailed if the supposed faults committed by one party were falsified.

Needless to say, getting a divorce legitimately back then was hard to accomplish.

An odd but perhaps unsurprising byproduct of how the divorce system worked in the past is that it forced people who no longer wanted to be married to come up with ways to dissolve their marriage. These methods included lying in court and coming up with fabricated stories about adultery.

If those methods didn’t work, the two parties would have no other choice than to remain married to one another.

How No-Fault Divorces Changed Marriages

Eventually, laws that allowed for no-fault divorces were written and adopted by different states, but that created a new kind of weirdness as well. Since not all the states adopted no-fault divorce laws simultaneously, the result was a lack of uniformity throughout the country.

What happened in many cases was that one party in a marriage would head to a state where they allowed no-fault divorces, stay there for the required amount of time, and then move forward with divorce proceedings. These days, you don’t need to move to specific states since no-fault divorce is now permitted throughout the country.

The Uniform Marriage and Divorce Act has also made obtaining a divorce simpler for the parties involved.

What Are Irreconcilable Differences?

As we noted earlier, the biggest contribution the Uniform Marriage and Divorce Act has made is the introduction of irreconcilable differences as a possible grounds for divorce. You may have heard the term used before when news of celebrities breaking up made headlines.

But what exactly does the term “irreconcilable differences” mean?

Also sometimes referred to as incompatibility or irretrievable breakdown, the courts often use the term “irreconcilable differences” as grounds for dissolving a marriage. In the eyes of the court, those irreconcilable differences are substantial enough to warrant the end of the union.

Breaking Down the Irreconcilable Differences

To further clarify matters, let’s focus on the two words included in “irreconcilable differences.”

The inclusion of the term “irreconcilable” indicates that at least one of the parties involved believes they can no longer salvage the marriage even with the help of counseling. Something is fundamentally wrong with the partnership and whatever that may be, at least one side has concluded that it has been broken beyond repair.

So, what about the differences? They refer to a lack of harmony on important elements of a marriage. They highlight the disagreements that arise between the two people involved.

For instance, career demands could be among the main reasons why two people are getting divorced. After taking on a new job, one spouse may be on the road all the time, and that can put a lot of strain on a marriage. If the two sides cannot find a way to overcome the distance, then they may conclude that filing for divorce would be best for them.

Money is another potential culprit in the breakdown of marriages. If one party sees the other as being irresponsible with their finances, divorce proceedings might follow soon.

Couples could also end up divorced because they want different things out of life. They may disagree on matters such as wanting to have kids or where they want to live. Those fundamental disagreements can lead to even strong unions falling apart.

Additional Facts about Irreconcilable Differences

You should know a few other things if you’re considering filing for a divorce on irreconcilable differences.

For instance, the law does not require both parties to agree on divorce on the grounds of irreconcilable differences for them to finalize it. Even if only one side is seeking a divorce, the courts can still approve it.

Another thing is that you don’t need to state your reasons for wanting a divorce. Per the Cornell Law School, the courts generally refrain from asking parties to further state why they are seeking a divorce if they cited irreconcilable differences. If you want to keep those matters private, you can do so.

What Are the Other Grounds for Getting a Divorce?

Apart from irreconcilable differences, there are other valid reasons for wanting to end a marriage.

These reasons include:

  • Abandonment
  • Abuse
  • Adultery
  • Alcohol Use
  • Drug Use
  • Imprisonment

Former partners who have been separated and living apart for some time may also file for a divorce. In that case, the two parties must be living apart for at least two years without reconciling before seeking an end to their marriage.

How to File for Divorce in the State of Arizona?

Once you and/or your partner decide your marriage is no longer working, you may file for divorce. Before you can start that process though, you must meet certain requirements.

You Must Be Domiciled in the State of Arizona

One of the requirements you’ll need to meet before you can file for a divorce is to show the court that you’ve been domiciled in the state for at least 90 days. According to LegalZoom, being domiciled means that you have completed certain actions which show that you fully intend to live in Arizona moving forward.

That is not going to be an issue if you’ve been an Arizona resident for a long time. However, if you recently moved to the state, you would likely need to take a few more actions. You can start by applying for a driver’s license.

File a Petition for the Dissolution of Marriage

Once you and/or the other party have been domiciled in Arizona for the required amount of time, the divorce proceedings can now press forward. If you’re the one seeking the divorce, you will file a Petition for the Dissolution of Marriage.

Drawing up that document is something you can probably handle on your own, but you could open yourself up to mistakes. Mistakes in the petition will likely mean having to re-file, and that would be an unnecessary drain on your time.

This is the point in time where you will want to consult with an experienced lawyer to help you craft the petition. If you are on speaking terms with your soon-to-be former partner, the two of you can also consult with one another when filling out the petition.

You’ll also have to mention the grounds for dissolution in the Petition for the Dissolution of Marriage. In the state of Arizona, that means stating that your marriage is “irretrievably broken.”

With the petition completed, you can then ask your lawyer to file it with the Superior Court of the county you live in.

Prepare for and Attend a Court Hearing

In all likelihood, the courts will ask you and the other party to appear once you file the petition. It would be a good idea to prepare for that court hearing beforehand.

Go over the facts you mentioned in the petition with your lawyer and make sure you know what to say in front of the judge. For the most part, the judge’s questions will be about the petition and your marriage.

They will also ask you if you understand everything that a divorce entails. The judge may ask about matters such as child custody, alimony, and property division during the hearing.

Those preparations should make it easier for you to say what you want in front of the judge. The judge may then enter a Decree of Dissolution of Marriage on behalf of you and your former partner.

Are There Cases Where Seeking a Divorce in Arizona Can Be Complicated?

While you can dissolve most marriages in a relatively straightforward manner in Arizona, some couples may have a tougher time doing so. Arizona is one of the few states in the country – along with Arkansas and Louisiana – that have covenant marriages.

If you entered a covenant marriage, you and your partner must first go to counseling before you can file for divorce. The two of you will also likely need to wait longer than most other couples before being eligible for divorce proceedings.

You should also note that covenant marriages in Arizona cannot be dissolved simply by citing irreconcilable differences. One of the parties involved must show that the other party was at fault for the deterioration of the relationship.

The reasons you can cite for fault in covenant marriages are the same ones mentioned previously. Those include abandonment, abuse, adultery, alcohol, and drug use, as well as imprisonment. Living apart for a prolonged period of time can also be pointed to as a valid reason for divorce.

Divorce is not the desired outcome for couples when they first got married. However, it is sometimes the inevitable result of people growing apart for one or several reasons.

There was a time not too long ago when finalizing a divorce was a Herculean task. Thanks in part to the Uniform Marriage and Divorce Act, couples who no longer wish to be married can have their unions dissolved.

If you want help navigating divorce proceedings, we at the Schill Law Group are ready to offer our assistance. Get in touch with us today and allow us to ease your burden as you go through what can be a trying time.