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Should you seek a postnuptial agreement?

You and your spouse didn't get a prenuptial agreement before you married. Maybe you didn't think you had enough assets to make one worthwhile. Perhaps neither of you wanted to give any thought to the possibility that your marriage might someday end.

Whatever the situation, now it's years down the road and things have changed. Maybe it's only months since the marriage, but you realize you should have gotten a prenup. You've seen your friends or parents go through an ugly, expensive, drawn-out divorce.

While it's too late for a prenup, it's not too late for a "postnup" -- a postnuptial agreement. These are also sometimes called post-marital agreements.

A postnup is basically the same thing as a prenup. As one attorney describes it, a postnup is a "written contractual agreement spouses enter into to define what will happen in the event of a divorce or separation." They're becoming increasingly common.

If your assets have increased considerably since your marriage (or brought assets into the marriage, but didn't get a prenup), a postnup can help you delineate what each of you will keep in a divorce. This can help make the property division portion of a divorce go considerably more smoothly.

The same is true for debts. Maybe you learned that your spouse had considerably more credit card debt than you realized when you got married. Perhaps they've gotten themselves into debt since the marriage thanks to bad investments or a drug or gambling problem. A postnup can help you avoid being saddled with your spouse's debts.

As with a prenup, both spouses have to agree to the terms of a postnup. Your spouse may not want to sign a document that will likely not benefit them. Perhaps you're earning considerably more money than your spouse. They may decide they'd fare better if the matter went before a judge to decide in a divorce.

Even if your spouse won't agree to all the terms you'd like, you may be able to get them to agree to some things, like not taking assets you want your children from a previous relationship to have. In turn, you may be willing to agree to things that will make your spouse happy. If you're considering a postnup, or your spouse has broached the subject, it's important to have your own attorney provide guidance and protect your interests.

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