§ 4.06 Distinguishing Between Premarital, Post-Marital and Reconciliation Agreements

• Jurisdiction: United States
• Publication year: 2021

§ 4.06 Distinguishing Between Premarital, Post-Marital and Reconciliation Agreements

[1]—Post-Marital Agreements

Most marital contracts are executed before the wedding. This is undoubtedly done so the parties can be certain how marriage will affect their property rights. Sometimes spouses sign a "post-marital agreement" after the wedding, at a time when they plan to continue the marriage, that addresses their rights if they divorce. It was mentioned above that many states have enacted statutes governing when premarital agreements addressing the possibility of divorce should be enforced. Fewer states have adopted statutes addressing when to enforce post-marital agreements, other than agreements (marital settlement agreements or separation agreements) spouses make when they have decided to divorce. The statutes that have been adopted in various states differ in some significant ways.

Texas has enacted a statute regarding the enforcement of post-marital agreements that is identical to the statute governing the enforcement of premarital agreements.³⁵⁰ It was set forth above that in Texas and many other jurisdictions that adopted the Uniform Premarital Agreement Act, it has been difficult to challenge the enforcement of a premarital agreement under the UPAA standards.³⁵¹ However, in light of the fiduciary relationship of spouses in an ongoing marriage, some cases suggest that it will be easier to challenge the enforcement of post-marital agreements in Texas and perhaps elsewhere. Two cases in Texas have involved situations where spouses have sinned a post-marital agreement when having marital difficulties. In both cases, there was testimony by the wife that her husband had threatened that, if she did not sign the agreement, he would file for divorce and initiate a custody dispute. In both cases, the court did not enforce the post-marital agreement, either on the basis of unconscionability or involuntary execution.³⁵²

While Texas adopted ostensibly the same standard for the enforcement of both premarital and post-marital agreements, it limited the types of provisions that can be included in a post-marital agreement. In one case, the parties during marriage signed an agreement, which provided that the husband would pay the wife a certain amount of money if they divorced. When the wife tried to enforce this agreement in their later divorce, the court held this this type of provision was unenforceable because it could not be included in a post-marital agreement.³⁵³

Some other states have created other procedural requirements for post-marital agreements.

Colorado and North Dakota have both generally adopted the Uniform Premarital and Marital Agreements Act.³⁵⁴ Under the Act, spouses generally may waive or restrict the right to receive spousal support at divorce. One interesting feature of the Act is that it provides that an agreement is unenforceable if the party resisting enforcement shows that he or she did not have access to independent legal representation.³⁵⁵ It is unclear how this requirement will be construed by courts. It should be noted, however, that the statute requires, if desired by a party, access to "independent" legal representation. The statute contemplates that, if both parties want legal advice, each party will select his or her own lawyer. So it apparently would not satisfy the statute if one party would select a lawyer to advise the other spouse.

This uniform law also includes the requirement that the parties exchange "adequate financial disclosure," which is defined to mean "a reasonably accurate description and good faith estimate of value of property, liabilities and income."³⁵⁶ This disclosure can be waived in North Dakota, but apparently not in Colorado.³⁵⁷

In both Colorado and North Dakota, a post-marital agreement is not enforceable if it was unconscionable when signed.³⁵⁸ In North Dakota, a post-marital agreement is not to be enforced if enforcement would work a substantial hardship on a party due to a material change in circumstances after the agreement was signed.³⁵⁹

Wisconsin has adopted a statute providing that a post-marital agreement should not be enforced if the party resisting enforcement can show that (i) the agreement was involuntarily signed, (ii) the agreement was unconscionable when signed, or (iii) there was inadequate financial disclosure and the objecting party was not otherwise familiar with the financial affairs of his or her spouse. Any purported waiver of spousal support is not enforceable to the extent that it would leave a spouse at divorce with less than necessary and adequate support.³⁶⁰

Minnesota has adopted a statute with some significant limits upon the enforcement of post-marital agreements. The terms of the agreement have to be substantively fair at the time of signing and at the time of divorce. Both spouses need to be represented by different lawyers. Finally, a post-marital agreement is presumed to be unenforceable if one spouse files for divorce within two years of the signing date.³⁶¹

It is unclear how states that do not have statutes governing the enforcement of post-marital agreements will determine when to enforce them. Some have concluded that, if all the equitable limits to the enforcement of premarital agreements are satisfied,³⁶² post-marital contracts should be enforced.³⁶³ A number of states have accepted this view.³⁶⁴ It was mentioned above that, some state statutes pertaining to the enforceability of marriage contracts refer to prenuptial and postnuptial contracts.³⁶⁵ Many other statutes only refer to premarital contracts.³⁶⁶ It is unclear when these states will enforce postnuptial contracts.³⁶⁷

In New York, postnuptial agreements will not be enforced if the terms are unconscionable, which one court has stated means that "no rational person exercising common sense would make it."³⁶⁸

One could argue that duress could be a bigger problem when spouses negotiate an agreement, compared to when prospective spouses negotiate. In the latter instance, partners normally will not have yet made a substantial commitment to the marriage; for example, in most instances, children have not been born. When spouses negotiate, however, the bargaining is more complicated. What if one spouse says (or suggests) that I will remain married to you only if you sign this contract?³⁶⁹ Particularly if the spouses have young children, a spouse may feel willing to make substantial sacrifices to avoid divorce. If a spouse in connection with a divorce threatens to hide a child or undertake a custody fight unless the other signs an agreement, this could also present duress questions.³⁷⁰ Even in childless marriages, emotional dependencies could exist that could make it difficult to bargain at arm's length.

A Washington court did not enforce a post-marital agreement that the court found unfair to the wife because the husband threatened to file for divorce if she did not sign.³⁷¹

A New York court did not enforce an agreement signed after the wife threatened to vanish with the parties' children.³⁷²

An Arkansas court did not enforce an agreement signed after the husband threatened to file for divorce.³⁷³

Similarly, an Oregon court has noted that premarital agreements "are inherently more arm's length in nature" than are postnuptial agreements. The court concluded that, before enforcing a postnuptial agreement, the court should be satisfied its terms are fair.³⁷⁴

In a few states, post-marital agreements are never enforced.³⁷⁵

Michigan courts distinguish between agreements that are calculated to put one party in a favorable position to abandon the marriage, which should not be enforced, and agreements that are intended to keep the marriage together, which should be enforced.³⁷⁶

A Kansas court has emphasized that, compared to premarital agreements, postnuptial agreements expose the parties to a greater risk of unfair advantage in the bargaining process.³⁷⁷ In this case, the Kansas Supreme Court held that for a post-marital agreement to be enforced, it had to be "just and equitable" both when signed and at divorce.

It was discussed above that, in the context of a premarital agreement, it is not considered duress or undue influence for a party to state in negotiations that "I will not marry you unless you sign this."³⁷⁸ It is less clear how courts will perceive negotiations during marriage if a spouse states "sign this postnuptial agreement or I will file for divorce."

In a New York case, the husband had an affair. The wife allegedly threatened to file for divorce unless he signed a postnuptial agreement limiting his rights if they divorced. When they divorced five years later, the husband claimed he signed the agreement due to duress. The court rejected this argument, noting that the wife had a legal right to file for divorce, and hence, threatening to do this was not unlawful duress.³⁷⁹

In a Tennessee case, the wife wanted to adopt a child and the husband did not. In order to induce the husband to consent to the adoption, the wife signed a postnuptial agreement limiting her rights upon divorce. In their subsequent divorce the court did not enforce this agreement because it was against public policy.³⁸⁰

In an Illinois case, the wife went with her children to visit her parents in Canada when the parties were beginning to negotiate a postnuptial agreement. The husband testified that he perceived this to be a veiled threat to stay in Canada with the children unless he agreed to her demands. The parties signed an agreement a few days after the wife returned with the children. The appellate court reversed the trial court's finding that the bargaining process was unconscionable.³⁸¹

If there is evidence of spousal abuse, this obviously could raise an issue of duress.³⁸²

In an Indiana case, the husband was put in jail shortly after the wedding. The wife told the husband she wanted a divorce. Instead, they decided to sign an agreement essentially to have separate financial lives...