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Most of us have heard of a prenuptial agreement to protect assets prior to marriage. However, for those who are already married but are concerned about their assets in the event of a divorce, it’s not too late to legally protect what is rightfully yours in the marriage. If you live in Tennessee and are in need of a postnuptial agreement, contact the family law attorneys of Martin Heller Potempa & Sheppard, PLLC. Helping you prepare for the future is what we do.
What is a Postnuptial Agreement?
A postnuptial agreement is a written agreement created after a couple gets married or has entered a civil union. This legally binding document is used to settle the couple’s affairs and assets in the event of a separation or divorce. These agreements can also determine how debts will be settled and how much support will be allocated if a divorce occurs in the future.
Also known as antenuptial agreements, postnuptial agreements are permissible under Tennessee law as they are considered contracts. To be enforceable, the postnuptial agreement must be written with such specificity and detail so that vague language does not pose an issue.
In Tennessee, there are a few elements that may be considered when drafting a postnuptial agreement. Such considerations include:
Establishing how property and assets will be passed on if one spouse dies.
How the issues of divorce (the division of assets, child custody, support payments, etc.) can be handled without a trial. This is particularly important when a couple has already decided to divorce at the time the agreement was created and signed.
Establishing the rights and obligations of each spouse in the event of a divorce. This is used for future circumstances of a divorce that may or may not occur.
It is important to note, however, that the Tennessee Supreme Court does not treat the enforceability of prenuptial and postnuptial agreements the same. Courts have found that creating a prenup before the marriage is enough consideration for determining the enforceability of the document.
However, in postnuptial agreements, it is not that simple. The court must know that both spouses entered the agreement knowingly, without fraud, coercion, or duress.
Why Would You Want a Postnuptial Agreement?
Many people believe creating a postnuptial agreement means the couple has contemplated a separation or divorce. However, that is not necessarily the case. A postnuptial agreement doesn’t start the divorce process, rather it just creates guidance on how assets, debts, etc. will be handled in the event of death or divorce.
Many couples create postnuptial agreements to:
Define the parameters of how property will be divided including marital and nonmarital assets
Create an inheritance for children of current or previous relationships
Define how the spouse who gave up a career to be home will be supported once the marriage ends
Determine how large assets like inheritance, lottery winnings, bonuses, etc. will be distributed
However, it is important to remember that while parameters for spousal and child support can be included in the postnuptial agreement, the couple will still need to have this approved by the court since the factors determining such payments require litigation.
There are a variety of reasons why a postnuptial agreement may benefit you and your spouse. Some couples actually use a postnuptial agreement to handle the financial disagreements that often lead to a breakup to ensure all parties are on the same page.
However, it is important to understand that enforcing the document can be difficult if it is not drafted with skill.
Tennessee Standards on Postnuptial Agreement Enforcement
Though postnuptial agreements cover many of the same topics as a prenuptial agreement, they still remain under close scrutiny in the courts. In general, the courts will determine whether both parties had adequate consideration in the terms of the agreement.
Under the law, consideration exists when a party exercises their legal rights to do or not do something. In determining adequate consideration, the courts will review if reconciliation after a separation or contemplation of divorce occurred. However, the courts do not enforce that separation or consideration of divorce occurs, so long as both parties can show they understand what the document entails.
In the case of Bratton v. Bratton, 136 S.W.3d 595 (Tenn. 2004), the Tennessee Supreme Court declined to enforce a postnuptial agreement eighteen years after its drafting for lack of adequate consideration. The Court found that the husband gave adequate consideration by agreeing to provide half of his net worth to his former wife if the divorce was his fault based on infidelity. However, the wife’s consideration of the postnuptial was vague as she merely promised not to pursue a career as a dentist.
Contact Our Family Law Attorneys to Create a Postnuptial Agreement Today
Whether you suspect wrongdoing in your marriage or simply want to have a plan for the years ahead with your spouse, you may have questions about drafting a postnuptial agreement. At Martin Heller Potempa & Sheppard, PLLC, we are committed to carefully advising our Nashville clients on what stipulations should be included in their postnuptial agreements, as well as negotiating those terms and properly executing a valid contract.
If you are already married and wish to protect your assets, now is the time to act. Contact our family law attorneys in Middle Tennessee today for more information.