In some states, such a New York, couples are allowed to enter into an agreement after a marriage or civil union called a post-nuptial agreement discussing things such as, but not restricted to, the division of property (real property, personal property such as livestock, cash assets), child support, spousal maintenance, and a restriction on relocation (e.g., spouse cannot relocate out of the Catskills).
To ensure that a court will later enforce the post-nuptial agreement, each party should be represented by separate counsel. Additionally, the post-nuptial agreement should be both signed and notarized by the parties. Should the couple get divorced, then they will have the burden to show the court that the document is a true and accurate copy of the agreement; therefore, the parties should consider putting the agreement in a place safe from an Act of God (e.g., fire, flood). Furthermore, the language should be clear/unambiguous and fair/reasonable for both parties.
Like any other contract, either spouse can use duress or fraud as a defense. Therefore, one spouse cannot threaten to cut off the other spouse financially if he/she does not sign the post-nuptial agreement (or any other threat that would rise to level of duress). Furthermore, each party has to get financially naked with the other spouse. Neither party can make any material misrepresentation to the other spouse about finances or illegitimate children unknown to the other.
I have previously blogged on how prenuptial agreements can be romantic; however, oftentimes post-nuptial agreements seem even more business-like (and less romantic) between the couple. But I urge folks to reconsider their outlook on both pre-nuptial and post-nuptial agreements.
Life changes. Families buy farms. People graduate from veterinary school and start a business. Children may have been adopted. One spouse might have received a significant inheritance. Families get dogs. One spouse might have purchased (and emotionally connected) with horses. It is respectful and loving to sit down and talk about how property would be divided if the couple splits to ensure that everyone is taken care of. Furthermore, this exercise forces couples to get “financially married” again and discuss the intimate details of their finances with each other.
Divorce has been on the rise putting family farms/ranches at risk. I think that post-nuptial agreements are especially important in the agriculture industry since one spouse is oftentimes involved in a business that has been in the family for generations.
I hope to have a webinar on this topic for farm/ranch families later this fall. Participation will be completely confidential. Please stay tuned for dates/times.