Postnups supersede divorce law relating to the distribution of property
According to a study entitled “Red States, Blue States, and Divorce: Understanding Regional Variation in Divorce Rates,” Alabama ranks third nationally in the number of divorces. Since, statistically, more than 50 percent of all marriages end in divorce, all married couples should understand that one of the functions of a court in a divorce proceeding is to make a division of the property owned by the parties. The Alabama Bar Association observes that if the parties have in place an agreement for dividing property upon a divorce, such agreements are looked upon with favor. If there is no agreement, a court will make the division “based on the needs and interests of the parties as shown through testimony at trial.”
If the distribution of property upon a divorce is left to a court to decide, you may end up with a distribution that you do not believe was neither fair nor reasonable. Leaving it up to an Alabama court to decide how marital property is divided could be avoided if the parties have in place a postnuptial agreement. Postnups are similar to prenuptial agreements with the difference being that prenups are executed prior to the marriage while postnups are executed after the marriage. Postnups are useful for clarifying what property is deemed to be “separate” property by the spouses. If property is deemed by an Alabama court to be your “separate” property, it remains your property following a divorce and is not split between yourself and your former spouse. Postnups are also useful for settling-in advance of a divorce-how marital property will be split up.
Articles in both the Huffington Post and the Daily Mail observe that postnups can be used to settle, and perhaps to head off, marital disputes involving financial disagreements. It is suggested that postnups are becoming more popular due to the fact that more couples are savvy enough to recognize that disputes over money lead to arguments which produce marital strife and disharmony. One expert interviewed by the Daily Mail observed that a lot of problems among married couples stem from money issues and, if you could take money disagreements “out of the equation,” many more marriages would actually work. In theory, postnups could help people stay happily married longer by putting an end to arguments over financial matters.
A number of Alabama judicial decisions make it clear that the courts of this state will enforce postnups if they are just and reasonable and not the product of fraud. If the postnup is valid, and written in clear and unambiguous terms, it operates to supersede Alabama divorce laws regarding the distribution of property upon a divorce. Stated otherwise, if the postnupt is valid, the Alabama courts cannot make a property division in a manner inconsistent with the agreement. Postnups can make Alabama divorce proceedings operate more smoothly. Moreover, since such agreements have already predetermined how property is to be divided among spouses, the divorce proceedings should be less contentious.
Advice on postnups
If you think that a postnup could be useful in planning your financial future in the event of a divorce, you need to contact an Alabama attorney who has expertise in family law matters. An attorney experienced in handling divorce cases and property settlements can go over with you the possible benefits of a postnup and draft one aimed at accomplishing your goals.