Family law disputes are increasingly being resolved through private ordering. Divorcing spouses generally settle the aspects of the dissolution of their marriage through separation or settlement agreements. Parents arrange for the post-divorce care of their children through parenting plans. Those entering into marriages who wish to alter the rules that would otherwise apply at death or divorce enter into prenuptial agreements. Rules concerning the drafting and enforceability of these types of agreements are fairly well established. The rules related to the enforcement of agreements entered into by spouses during the marriage, however, are evolving.

Postnuptial agreements are utilized in a variety of circumstances. For instance, one spouse may admit to an affair that has recently ended. The other spouse insists on therapy and does not seek dissolution of the marriage, hoping to repair the relationship and keep the family together for the sake of their young children. The “guilty” spouse had insisted upon a prenuptial agreement protecting separate property and substantially limiting spousal support in the event of a divorce. The “innocent” spouse insists that the prenuptial agreement now be disaffirmed, and that they enter into a new agreement. This postnuptial agreement is to be drafted by their independent lawyers and will provide that all property previously separate or acquired during the marriage be treated as marital property and that any subsequent spousal-support awards be decided either in a written agreement by the parties or awarded by a court with a minimum monthly spousal award designed in the marital agreement.

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