What are the Disadvantages of a Postnuptial Agreement?

If you’re married and you’ve never heard of a postnuptial agreement, don’t worry; you’re not alone. Most of us are familiar with prenuptial agreements, the paperwork couples sign before they get to the altar. But what happens after you tie the knot if you want to refine the financial responsibilities between you and your spouse? That’s when post-nuptial agreements enter the scene.

It sounds practical. After all, people change, marriages evolve, and unfortunately, sometimes even dissolve. Thus, it may be beneficial to have a clear understanding of where each person stands financially. But–and this is a big “but”–like all legal arrangements, postnuptial agreements aren’t without their downsides. Before you run to draft your postnup, investigate the potential disadvantages and why they might not be the fairy-tale solution they seem to be or may not be for everyone.

Boudreaux Hunter & Associates, LLC is a Houston-based divorce firm with over 20 years of experience handling prenuptial and postnuptial agreements, adoptions, divorces, child and spousal support, and custody cases across Texas. With a proven track record of satisfied clients, our attorneys are well-equipped to help you resolve matters before they escalate.

Assumption of Divorce

Many people view a postnuptial agreement as an assumption of divorce. After all, why else would someone want to ensure their assets are protected from a spouse they’ve promised to love and spend the rest of their life with?  Divorce is the elephant in the room when you bring up a postnuptial agreement. But it doesn’t have to be.

While divorce is one reason for a postnuptial agreement, there are other reasons one or both spouses may want such an agreement. If one or both spouses has been married before and has children from a previous marriage, a postnuptial agreement may be used to preserve or separate assets that are meant to ensure the children are cared for in the event of their parent’s death or disability.

If one or both spouses has a high-liability career, such as a doctor or lawyer, a postnuptial agreement maybe a method of protecting the assets of the separate estates created by the agreement from any liability lawsuits. This can also apply to other liability lawsuits, such as if one spouse is at fault in a car accident. If one spouse incurs a significant amount of debt, a postnuptial agreement can also protect the other spouse’s assets from their creditors. But, these instances are not always applicable depending upon the type of postnuptial agreement the couple is wanting to create.

In order to consider the many benefits postnuptial agreement possess, couples must push past the fear of divorce to discuss these other potential benefits before they refuse to sign one.

It’s Not The Most Romantic Conversation

It’s akin to doing your taxes together. Both spouses have to be completely transparent about their finances, it’s time-consuming, and there are often disagreements. These disagreements can turn into bigger arguments and, in rare cases, may even result in divorce.

However, when handled well, this highly practical conversation may actually bring a couple closer together. Like hiring an accountant or tax preparer to assist with taxes when they disagree, couples can work with an attorney or even a therapist to have healthy, open conversations about what they disagree with in the post-nuptial agreement. These discussions can help the couple understand each other better, leading them to agreements in the postnuptial agreement and creating a stronger, happier marriage as they feel closer and more connected to each other.

The Potential for Unfair Terms

Postnuptial agreements, like any other condition of an agreement or contract, can contain unfair terms or imbalances, especially if one spouse holds more power or financial control than the other. In marriages where one partner earns significantly more, has more financial knowledge, or possesses considerably more assets, it’s easy for the terms of a postnuptial agreement to tip in their favor. Now, if the financially more vulnerable spouse feels pressured to sign, they may very likely end up with a one-sided deal in favor of their more well-financially positioned spouse.

Postnuptial arrangements are only valid if both parties enter into them willingly and without coercion. However, terms can be configured in such a way that they don’t reflect both spouses and likely won’t feel fair later on, particularly should circumstances alter. Picture a scenario where one spouse consents to receive a small portion of assets in the event of divorce, only to regret it years later when their relationship and financial situation have drastically shifted. One way to avoid this is, again, to have open and honest conversations.

The more financially vulnerable spouse should feel comfortable to speak up if they feel something may be unfair. Postnuptia agreements are contracts after all, and there is never an obligation to execute one unless the parties have actually reached an informed agreement on the terms. Once the couple has gotten the terms of their postnuptial agreement on paper, they can also avoid the potential of unfair terms by having an attorney review the agreement before they sign. Each spouse should have their own attorney review the agreement to ensure their interests are represented and that they are fully informed about the legal implications contained in the agreement.

Emotional Taxes Are High

Drafting a postnuptial agreement isn’t just about paperwork—it’s an entire process that forces couples to examine themselves and their circumstances and have tough and analytical conversations about finances, expectations, and hypothetical separation. And let’s face it: Talking about what should happen in case of a divorce is never easy, even if it’s a “well, let’s just say” or “what if” conversation.

The emotions that arise during this discussion can vary, but for many couples, the experience is emotionally exhausting, bringing up insecurities and deeply rooted concerns about the stability of the marriage. However, many couples navigate these waters smoothly, finding that exposing these concerns makes their relationship stronger as they offer each other reassurance and compassion.

Taking on the crafting of these agreements mandates transparency about assets, debts, and financial goals. The emotional pressure to be forthcoming, paired with the weight and consequence of legal jargon, can leave both parties feeling drained, overwhelmed, and even confused. With the assistance of a skilled attorney or knowledgeable therapist, couples can alleviate some of this pressure and remove some of the emotion from the conversation. While it may briefly feel like they are acting more like business partners than life partners, many couples ultimately walk away feeling more secure and protected because these discussions have been so transparent.

Legal Complications and Enforceability

Another possible disadvantage of postnuptial agreements is that they aren’t always ironclad. Even if both parties sign willingly, there’s no guarantee that the agreement will be upheld in court. Postnuptial agreements, like prenuptial ones, must meet specific legal criteria and requirements to be enforceable, and failure to follow these guidelines could render the agreement void.

For instance, a postnuptial agreement can be contested if one spouse can prove they signed the agreement under duress or without full understanding of the terms. If one party withheld financial information or they failed to fully disclose all assets, the agreements could also be tossed out. If the couple addresses child custody or support in their agreement, the agreement will not be enforced. Texas does not allow individuals to contract away the right or obligation for child support. It is important to remember that, while you can include some child related provisions, a postnuptial agreement is ultimately a property agreement under the Texas Family Code.

The simplest way to ensure enforcement of a postnuptial agreement is having it drafted and carefully reviewed by an attorney. Most couples are not experts in the law, while a knowledgeable attorney knows the ins and outs to ensure that any postnuptial agreement they make meets all the legal requirements and is thus more likely to be enforced.

Potential Misunderstandings Due to Complex Legal Language

Postnuptial agreements are written in legal language, rather than the way people speak every day. This legal language can sometimes be complex and this can potentially lead to misunderstandings. These misunderstandings may lead to more disagreements, a refusal to sign the agreement, or a temporary or permanent shift in the marital dynamics.

However, the complex legal language of a postnuptial agreement does not have to lead to these potential problems. Instead, both spouses should speak up if there is something they do not understand or seems questionable to them. They should ask the attorney drafting the agreement, or ask their own attorney when the agreement is reviewed, to break down the agreement into simpler terms that help them better understand what is meant.

Despite the complexity of the legal language used, once everyone has a clear understanding of what the agreement says, postnuptial agreements often provide clarity and comfort in a marriage. Both spouses understand where they will stand in a divorce, if the worst happens. Both spouses also better understand each other, having learned their spouse’s priorities, assets, and other information that may not have been as clear before.

Is a Postnuptial Right for You?

At the end of the day, deciding whether or not to create a postnuptial agreement is an extremely personal choice that shouldn’t be made in haste. While there are drawbacks, many of them can ultimately be used to make the marriage stronger and more stable. Spouses may need to have several lengthy conversations with each other and an attorney to decide how a postnuptial agreement can benefit them.

If you are considering a postnuptial agreement or the prospect of one with your partner, it’s important to weigh the pros and cons in your case based on your relationships and based on your financial assets and concerns. Such protective documents can be a fantastic tool for financial planning and cushioning yourself and your spouse in planning for the unexpected. If you are concerned about how to broach the topic with your spouse and how to frame your discussion for a postnuptial agreement, an attorney may be able to offer guidance. The best and wisest first step is to sit down with a skilled Texas family law attorney. Contact a trusted and seasoned Houston family law and divorce attorney by calling our divorce law firm at 713-333-4430 for a confidential consultation today.