A Post Nuptial Agreement has all the same elements as a Prenuptial Agreement, except that it is executed by both parties after they marry.
The parties during their marriage disclose to each other all the money and assets currently owned by each, both separate property and marital property. Then they set forth the rights and responsibilities each party will have during the marriage, including how their money and property will be divided in the event of a divorce,separation or death of one or both of them.
A Post Nuptial Agreement can establish what kind of support either party will pay to the other during or after a divorce, or alternatively direct that there will be no support payable. However, it must be noted that spousal support will be awarded by a court if one spouse earns significantly less than the other, or forgoes a career for the betterment of the household to raise children, or care for an ailing relative during the marriage. Spousal support would continue until that party became financially viable or remarried.
With respect to property, any property and assets brought to the marriage by one party are called separate property. As long as this property is kept separate from the property that both parties obtain together, the separate property continues to remain the property of that spouse during and after the marriage, as long as this property is specifically identified in the Agreement as separate property. If property is co-mingled or placed in both names, then it is considered to be marital property and will be subject to a division in the event of a divorce.
Child support, custody and visitation issues cannot be addressed in a Post Nuptial Agreement. The court will determine whether the provisions of the Agreement are in the best interest of the child, therefore such issues will be resolved by the court during the divorce proceedings.
Also, a Post Nuptial Agreement can address the matter of support for children from previous relationships who are not the biological children of both parties in the event of a marital breakdown.
The couple may protect a business or investments as well as safeguarding trusts for children and other beneficiaries.
A Post Nuptial Agreement can specify that pre-marriage debts brought into the marriage by one spouse will be the responsibility of that spouse.
Therefore, the Post Nuptial Agreement gives both spouses a way to legally specify the way property and finances are to be handled during the marriage and in the event of a separation or divorce.
The validity of a Post Nuptial Agreement may be challenged by either spouse on the same basis as a challenge to a Prenuptial Agreement - fraud, duress and undue influence, lack of independent legal advice, non disclosure or undervaluing of assets,and unfair provisions.