Marriage, Trust and Postnuptial Agreements

While postnuptial agreements are not enforceable in every state (Ohio, for example), some states place substantial limitations on the ability of a husband and wife to enter into these agreements. The following 11 states evaluate post-nuptial agreements under the same statute as pre-nuptial agreements: Alabama, Florida, Hawaii, Indiana, Kentucky, Missouri, Pennsylvania, Utah, Virginia, Washington and Wisconsin. The following 15 states impose greater restrictions on post-nuptial agreements than pre-nuptial agreements: Arizona, Arkansas, California, Connecticut, Delaware, Louisiana, Minnesota, Montana, New Jersey, New Mexico, New York, Ohio, Oklahoma, Tennessee, Wyoming and Puerto Rico. Other states impose myriad requirements on post-nuptial agreements for them to be enforceable. For example, couples in Minnesota may enter into a postnuptial agreement only if: 1) each spouse has a net worth of $1.2 million; and 2) the couple stays married for at least two years after the agreement is executed. Several states including New Jersey and Tennessee require that a post-nuptial agreement meet standards of substantive fairness both at the time it is signed and at the time it is ultimately enforced. With regard to post-nuptial agreements, California imposes a rebuttable presumption of coercion. (Citations to the relevant statutory and case law are available upon request to the editor.)

While some spouses feel awkward about asking their partner to sign a postnuptial agreement, these agreements do not necessarily predict a future divorce. In fact, a postnuptial agreement can save a marriage. Despite their popularity, there is a surprising lack of legal precedent regarding several elements of the agreements, e.g., the timing, content and appropriate level of disclosure required for a postnuptial agreement to be enforceable.