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Postnuptial Agreements

Postnuptial agreements or post marital agreements are agreements negotiated by a married couple during their marriage are a fairly new application of law. Mediation is an ideal setting for couples to formulate and negotiate these written agreements.The aim of these postnuptial agreement scan be used to address problems in the marriage that are causing it to suffer or new circumstances that the spouses had not thought about when they first got married. Spouses who negotiate postnuptial agreements usually want to continue their marriage, and are intending that their agreement will help, not hurt, their marriage. Their intent can be to create mutual understanding, reduce tension over certain aspects of the marriage and to set in place mechanisms to avoid divorce. Postnuptial agreements range from delineating household duties to the provisions they wish to put into place if their marriage does end in divorce, and everything in between. Because it is an agreement made after the marriage, it is called a postnuptial agreement.

Postnuptial agreements rely on the good faith and fair dealing of each of the spouses. If a spouse wants to use the post marital agreement for his or her own advantage during a divorce, it might not be an appropriate vehicle for a couple. However, a properly conceived and fairly written postnuptial agreement that takes into account the fiduciary relationship between the spouses can be valid in case of a divorce. More importantly, a postnuptial agreement can allow the spouses to take a path towards understanding, reconciliation, and clarity on any issues that the spouses are having between each other and in this way can help prevent divorce.

Negotiating postnuptial agreements is more sensitive than negotiating prenuptial agreements as there can already be tensions in the marriage. Mediating the terms of a postnuptial agreement allows for customization to address each spouse’s specific concerns. Mediators’will guide you through the elements required to formalize your agreements and can ensure you are ready to undertake these written legally binding commitments.Often the value the verbal understandings gained during the mediation process and being able to see and hear the other spouses concerns and or points of view is enough and there becomes no need for a written agreement.

Topics may include:

  • Household duties
  • Management of household finances
  • Financial obligations to the marriage
  • Differences in parenting styles causing challenges in relationship
  • Challenges in communication
  • Building communication and listening skills
  • Managing realistic expectations

How do I ask my spouse for a post nuptial agreement?  Usually the request doesn’t come as a surprise because traditionally there are some issues in the marriage prior to the request being made. The important point is to emphasize that it is not a request to divorce, rather the request is being made in order to try and save the marriage and prevent divorce.

Should I try to go for marital counseling first?  That’s a judgment call for both of you to make. Marital counseling serves a different purpose in that the process explores reasons for the problems in the marriage, while mediating the terms of a post nuptial agreement looks to problem solve issues and if mutually requested memorializes the parties agreement into a legal contract rather than spending months or years analyzing why and how each party got to where they are.