While both documents serve the same purpose, post-nuptial agreements differ from prenups in that they are created after a marriage is already in progress. As a result, many people question their validity and worry that they will not be upheld should a divorce occur. The Spruce explains what elements must be present to ensure a post-nuptial agreement is enforceable in court.
The first element concerns whether assets have been fully disclosed in the document. Some people will attempt to hide assets from their spouse when divorcing to ensure they aren’t split during the process. If you fail to include all of your assets in the post-nup, the court may find the entire document invalid and subsequently not honor its terms.
There is also a question of duress when creating any sort of marital document. When one party forces another to agree to terms they otherwise wouldn’t, those agreements are likely not to be upheld. Additionally, neither prenuptial or post-nuptial contracts can make determinations about child support, visitation, or custody. These issues are decided by the court based on the best interests of the child.
Lastly, a post-nuptial agreement must be considered fair to all involved. If a spouse gives up certain rights that he or she would otherwise be privy to, the court may not agree with the terms. This is usually the case when one couple owns a business. If both people contribute funds to the business over time, it’s likely to be considered a shared asset. In this case, the assets may be split between the couple by the court.