Why Are Post-Nuptial Agreements on the Rise in Virginia?

         Traditionally, post-nuptial agreements have carried a negative stigma, however these agreements are becoming more and more popular among couples in Virginia. 

What is a Post-Nuptial Agreement?

 A postnuptial agreement is similar to a prenuptial agreement in that they both outline the division of assets and liabilities in case a divorce or death occurs. Similar to a prenup, a postnup agreement can cover pretty much everything from how to divide assets if a divorce does occur to limits on a partner’s weight gain.  However, the major difference between these two documents is that a “postnup” is created after the marriage takes place, whereas “prenups” are created before the marriage is official. 

Post-Nups on the Rise

In a survey done by the American Academy of Matrimonial Lawyers last year, 50% of divorce lawyers stated that they saw an increase in spouses seeking postnuptial agreements.  This begs the question: Why are more couples seeking a postnup agreement?

Why are Post-Nups Becoming More Popular?

Postnuptial agreements are a valuable resource for spouses, particularly couples with significant wealth and assets.  The rise in couples seeking post-nuptial agreements can be attributed to several factors, listed below. 

Infidelity Clause

One common reason for an individual to suggest a postnup to his or her spouse is to punish the partner for bad behavior, such as cheating or deter the partner from participating in this type of behavior to begin with.  In fact, one of the most common reasons that couples sign a postnup is because of marital misconduct. Recently, celebrities have been appearing on the front page of popular tabloids because of their outrageous infidelity clauses included in their marital agreements.  It is reported that Jessica Biel will be compensated at least $500,000 if Justin Timberlake ever cheats on her.  These infidelity clauses are becoming more and more popular for the general population as well because of the fact that many states have implemented no-fault divorce and now allow couples to file for a divorce without stating a “fault” (such as infidelity/adultery).  Because of this, some courts will no longer monetarily sanction a spouse by awarding more spousal support or a similar remedy.  Therefore, for many couples, including a “no cheating” clause in their postnup agreement is often a way for the couple to express their values and set their own rules for a divorce. 

Modern Trends

Additionally, women in modern society are beginning to earn more money on their own.  When this happens after the marriage, the woman often wants to create a postnuptial agreement that protects her assets as well as her husband’s.  On the flip side, some women request a postnup because they end up leaving the workforce after they get married.  When this situation occurs, many women want to enter into a postnup with their spouse so that they will be protected in the event of a death or divorce. 

How do Courts Interpret Postnups?

It is important to note that courts scrutinize postnups more closely than they do prenups.  Since postnups are entered into by spouses (who have a higher duty to each other than fiancés), judges will review these “contracts” with a fine-toothed comb and expect to see that the spouses made complete disclosures to each other regarding their finances before they signed the agreement.  In the recent Supreme Court decision, Ansin v. Craver-Ansin, the Court laid out five factors that a court should consider when evaluating a postnup agreement: 1) whether each party had the opportunity for independent counsel, 2) whether there was fraud or coercion in obtaining consent to the agreement, 3) whether all assets were fully disclosed prior to the execution of the agreement, 4) whether each spouse knowingly waived his or her rights to property-sharing and to support upon the divorce, and 5) whether the terms of the agreement are “fair and reasonable.” 

If you are considering a postnuptial agreement and want to determine if it is the right option for you and your spouse, call (804) 325-1245 or (757) 941-4298 to speak with an experienced Smith Strong attorney.