09/21/2012 11:48 am ET Updated Nov 21, 2012

Postnuptial Agreements: The Prenup for Married Couples

As any married couple knows, over the course of time the relationship can often change in many unpredictable ways. In today's economy, this is true especially in the areas of salaries and financial assets. Sudden and significant shifts in financial stature have the potential to cause conflict and insecurity, and an increasing number of married couples are turning towards postnuptial agreements to proactively address these concerns.

Basically, postnuptial agreements are voluntary contracts between couples who are already married and can cover a wide variety of issues, including possible conflicts over finances, property, assets, children, support, and probate matters. Postnuptial agreements can serve as a valuable tool to help prevent these potential trouble spots from escalating into serious disputes that might ultimately jeopardize a marriage.

The most recent evidence of the trend towards an increased number of postnuptial agreements is in the latest survey of the American Academy of Matrimonial Lawyers. More than half of our members, at 51 percent, have seen an increase in postnuptial agreements during the past three years. Also, 36 percent of the respondents also noted an increase in wives initiating the requests.

It is interesting to note the increase in women requesting postnuptial agreements, because often one of the most common motivators for these agreements is a dramatic change in the financial status of one or both partners during the marriage. As more women work and achieve success on their career paths they are obviously amassing greater wealth and assets. As a result, a wife in today's financial world has greater need of financial safeguards than she had in past generations.

Another situation precipitating an increase in postnuptial agreements is when couples with children from a prior marriage remarry. In this situation, a postnuptial agreement will most often spell out in clear terms what properties, assets, and support the child or children will each ultimately receive in case of a divorce.

If you come to the conclusion that a postnuptial agreement might be necessary, it is essential to consider the following steps before moving ahead. First, begin by gathering a complete and accurate outline of all your assets and debts. Postnups are often held up to greater scrutiny in court, so it is important to share full and open disclosure to your spouse throughout the process. This is certainly not the time for any secrets or purposely holding back information, because such deceptive behavior can seriously damage the validity of the agreement.

Also, remember that a postnuptial agreement is a contract. In other words, make sure that in addition to receiving something, you are also agreeing to give your spouse something in return. After identifying the main purpose of the postnuptial agreement and what assets you are trying to protect, the next step is to determine what you will be willing to give your spouse in return.

If the postnuptial agreement addresses a division of assets or the waiving of spousal support, then the other side must be seen as being fairly represented and compensated. Like any other contract, if it is seen as excessively one-sided then it has more of a chance of being deemed invalid.

Above all, always keep in mind that a postnuptial agreement should be a collaborative process between spouses. The goal is to prevent a conflict from developing rather than creating friction and harming the relationship.