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Better Late Than Never – How a Post-Nuptial Agreement Can Help Your Marriage

Many couples decide to sign a prenuptial agreement before they marry. These agreements are designed to protect a spouse who brings property into a marriage and is concerned that the property might be viewed as marital property should the parties divorce.

However, many people whose interests would be served by a prenup do not ask for one before the marriage, because they worry that their intended spouse will see it as a sign that the marriage might not be permanent. Others simply do not take the time to negotiate and sign a prenup because they were overwhelmed with planning their wedding.

Even if you realized only after the wedding that a prenup would have been a good idea, all is not lost. An increasing number of couples have signed post-nuptial agreements, which are entered into during the marriage. A postnup can allow the parties to make exactly the same kinds of promises and conditions that could have been established by a prenup.

Why might I want to sign a postnup?

Sometimes a change in circumstances during the marriage can result in the decision to sign a postnup. This can happen if one party has received a large inheritance, or if the couple is trying to save their marriage and believe that coming to an agreement regarding their property may relieve some of their marital stress. Just as a prenup can be designed to last indefinitely, to terminate after a certain amount of time, or to conclude on the occasion of a specific event (such as the birth of a child), a postnup can be written in exactly the same way.

Does Alabama law allow for post-nuptial agreements?

Alabama law has a presumption that postnuptial agreements are usually valid. Several sections of the Alabama code assume the validity of agreements entered into between a husband and wife during the marriage. In addition, in 1989, the Alabama Supreme Court held that an agreement allowing a wife to give up her share in her husband’s estate in exchange for other property was valid.

On the other hand, Alabama law sees any agreement between a husband and wife as one in which the parties have a fiduciary relationship. All agreements must be made with full disclosure of all relevant information. If it is discovered later that one party did not fully disclose their financial situation, the court can decide to invalidate the agreement.

As in the case of a prenup, a spouse who is presented with a proposed postnup should make sure that they understand the agreement. It is always a good idea to consult with an Alabama attorney who is experienced in family law matters before you sign a postnup, rather than relying on the advice of your spouse and his or her lawyer.

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