When personal and professional success intersects with marriage, planning ahead can protect hard-earned assets and minimize future disputes. One increasingly common tool for doing so is the post-nuptial agreement. But what exactly is a post-nuptial agreement, when will it be enforced, and when might a court set it aside? Here, we break down everything successful individuals should understand before proposing, signing, or relying on a post-nuptial agreement.
What is a Post-Nuptial Agreement?
A post-nuptial agreement is a legally binding contract entered into by spouses after marriage. It outlines each party’s rights and obligations regarding assets, income, and sometimes spousal support, should the marriage end in divorce or death. These agreements are generally subject to ordinary contract law principles, but because spouses owe fiduciary duties to each other, courts scrutinize them more closely than typical commercial contracts.
When Are Post-Nuptial Agreements Enforced?
Courts will generally enforce post-nuptial agreements if:
- The agreement is fair on its face.
- It was entered into voluntarily, without fraud, duress, coercion, or overreaching.
- Each party had full knowledge of the other's finances.
- The agreement was properly executed and acknowledged before a notary public.
- There was valid consideration (meaning, something of value was exchanged (yes, courts have held that continuing in the marriage may be sufficient consideration – but coercion or duress must be avoided)).
When Will Post-Nuptial Agreements Be Set Aside?
Courts may set aside a post-nuptial agreement if:
- There was fraud (one spouse materially misrepresented or concealed facts).
- There was overreaching (one spouse exploited the other’s vulnerability).
- The agreement is unconscionable (shockingly unfair at the time it was signed).
- There was duress or coercion (threats, pressure, or manipulation to force signature).
- There was a lack of valid consideration (nothing was given in exchange for waiving rights).
The Role of Pressure and Timing
Courts are sensitive to whether one spouse pressured the other to sign without adequate time to consider the terms, without independent legal advice, or under emotional vulnerability. For example, encouraging a spouse to sign an agreement during illness, surgery recovery, or emotional distress can taint the validity of the agreement.
Understanding Consideration
Under contract law, consideration means each party gives something of value. In the context of a post-nuptial agreement, examples of consideration could include:
- Agreeing to stay in the marriage (but not always).
- Forgiving past infidelities.
- Financial concessions, such as transferring property, cash payments, or adjusting estate plans.
Infidelity and Post-Nuptial Agreements
Infidelity can influence negotiations around post-nuptial agreements. Forgiveness or the willingness to continue the marriage can serve as consideration, provided it's expressly stated or linked to the agreement. Courts will assess whether any promises made in connection with infidelity were fulfilled and whether the terms reached were fair and voluntary.
Do’s and Don’ts When Proposing a Post-Nuptial Agreement:
DO:
- Engage separate attorneys for both spouses.
- Provide full financial disclosure.
- Allow ample time for negotiation and review.
- Negotiate openly and fairly, giving each party a voice.
- Document the process carefully, including execution before a notary.
DON'T:
- Pressure, coerce, or surprise your spouse with an agreement.
- Hide assets or misrepresent financial information.
- Rush your spouse into signing, especially during stressful life events.
- Rely on verbal promises not reflected in the written agreement.
Conclusion
A properly crafted post-nuptial agreement can offer peace of mind, protect family wealth, and clarify expectations between spouses. However, because of the heightened legal scrutiny and the emotional dynamics involved, careful planning and legal guidance are essential. For business owners, executives, and high-net-worth individuals, investing time and thought into the process with experienced counsel can make all the difference.
If you're considering a post-nuptial agreement, or if you need to review or challenge an existing one, contact us, our firm can help you navigate this sensitive area with discretion, care, and strategic foresight.
You may learn more about us and how we operate by visiting these pages: About Us and What Sets Us Apart.
This blog post is for informational purposes only and does not constitute legal advice. For specific legal counsel, please contact our office directly.