Most people are much more familiar with the idea of premarital agreements. Usually there is the concept of protecting a much wealthier person’s assets from being divided in a divorce action. Once a couple has married with no such agreement, there is the perception that there is nothing to be done about this. Further, if the marriage seems to be a solid one, why would one be needed anyway?
There are at least five scenarios when a post-nuptial agreement may be beneficial. First, one of the partners may have come into the marriage with a great deal of separate credit card debt. A creditor may try to sue and get a judgment against all marital assets. A post-nuptial agreement can divide the assets between husband and wife as well as spell out who is responsible for what debt.
Secondly, one of the spouses during the marriage may have serious spending issues. The more conservative spouse may not want to get divorced over this issue but may want to be protected against claims from these new creditors.
Thirdly, either husband or wife may have the intention of starting a speculative business venture that may either go very well or may cause tremendous marital debt. The non-business owner spouse again may want the protection from these creditors.
Fourthly, a post-nuptial agreement may protect assets in the event one of the spouses later decides to file for a personal bankruptcy. The bankruptcy trustee will examine the agreement to determine ownership of the assets under state law.
Finally, there are many instances where one or both spouses have children from a prior marriage or relationship. In the event of death, it is much more clear-cut as to what assets belonged to which spouse and may lessen the chance of nasty litigation in probate court by having such an agreement.
A thoughtful and well-drawn post-nuptial agreement may actually enhance the stability of a marriage because there will be less worry about unplanned liabilities descending upon the more fiscally responsible spouse.

Submitted by:  Sharon L. Michaels, Attorney and President of Harris County Bar Association, website

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