Post-nuptial Agreement – What it is, definition and concept

The post-nuptial agreement is a pact between two people who have already formalized their union through marriage and where the patrimony of both is recorded and how it will be regulated at the time the marriage is dissolved.

That is, a post-nuptial agreement is one that is signed between the spouses after marriage. In this pact it is decided how the assets will be distributed in case the marriage breaks up, among other issues.

The difference between this post-nuptial agreement and the pre-nuptial one is that the second one is prior to the marriage and the post-nuptial one is once it has already been formalized.

The agreement decides the regime that will apply to the marriage once it is dissolved. That is, it will be established how the property, money or financial compensation of a spouse should be regulated.

It is not about marriage agreements. It is simply a private agreement between the two parties where the rules are established at the patrimonial level between them once the marriage ends and as long as they do not contravene the law.

Post-nuptial agreements come into play once this marriage has been dissolved. These agreements are very common in the US.

Characteristics of the post-nuptial agreement

The main features are:

  • You cannot agree on anything that is contrary to the law or to the equality of the rights of the spouses.
  • The participants of this agreement are the future spouses.
  • This agreement is private, therefore, unlike capitulations, they do not have to be registered in a public deed. This pact will be valid, even if it has not been raised to the public record.
  • To make this agreement, the assistance and consent of the spouses is needed.
  • They cannot include provisions regarding the maintenance of minors or the visitation regime, an issue that will be decided in court.
  • It is a private contract and therefore is subject to the rules of the contracts. There should be no threats or coercion to sign it, but it must be manifestly the will of the parties.
  • It will be taken into consideration by the judges and courts when dissolving the divorce.
  • It cannot be a verbal agreement, but must be recorded in writing.
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Post-nuptial Agreement Topics

The main topics covered by this agreement are:

  • Property listing.
  • How to deal with the debts of the marriage.
  • Assets and liabilities division.
  • Division of the patrimony at the time of the dissolution of the marriage.
  • Personal responsibilities: as long as they are not contrary to the rights and obligations stipulated for the spouses by law.
  • Exclusion of inherited or inherited assets.
  • The possible financial compensation of one of the spouses.
  • Regulation of assets if there is the death of one of the spouses.

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