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What is a postnuptial agreement?

A prenuptial agreement is a well-known method of setting forth resolution, before marriage, of issues that may arise if the marriage ends in a divorce. However, couples in New Mexico who are already married may enter into similar cost-effective settlements by creating a postnuptial agreement.

Like a prenup, a postnuptial agreement often determines the division of marital property if the marriage ends. It may also set forth the terms and length of alimony payments. A postnup can also address the division of property if a spouse dies. Such an agreement may describe the division of marital debts such as loans, mortgages, and credit card debt, too. The passing of assets during marriage or divorce may also be governed by the agreement.

Another type of prenuptial agreement can serve as a separation agreement. These can govern the handling of issues such as child custody, child and spousal support, and property division in a divorce. This agreement can be incorporated in the final divorce decree.

These agreements must be in writing, though, and each spouse must voluntarily and intentionally enter into them. An agreement that was entered through coercion or threat is invalid.

There must also be fair and complete disclosure of assets, liabilities, and income. This is important because a postnup is used to determine how assets, debts, and support is apportioned if the couple end their marriage. Any agreement based upon incomplete or inaccurate information is unenforceable.

Postnuptial agreements should be considered when spouses have children from earlier marriages or relationships to set forth what assets or inheritances those children will receive. These are also helpful if one spouse was financially irresponsible or faced legal troubles during the marriage.

Additionally, these agreements help protect against future uncertainty if a spouse receives a large inheritance, lottery winnings, a large salary increase, or another financial windfall. A spouse who stopped working to stay at home to care for their children may seek these agreements to provide for financial security should their marriage dissolve, as they may have given up significant career-building and education-obtaining time.

However, spouses with substantial income inequality may think carefully before entering this type of agreement because it may not provide adequate financial support. A spouse should not enter any agreement that was not carefully reviewed or understood. For this reason, an attorney may prove beneficial when it comes to drafting and negotiating these agreements in conferences or mediations. A lawyer can help ensure that such an agreement is legally valid and enforceable, as well as supportive of an individual's best interests.

Source: Legal, "Everything you need to know about postnuptial agreements," Accessed Sept. 25, 2017

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