You and your spouse were once very much in love with one another, but that changed over time. You became resentful as you both grew apart, and that’s what led to you both agreeing that it’s time to divorce.

In the past, you had a postnuptial agreement drawn up. You and your spouse both signed it around two years ago, so you feel that it’s totally fair. She wants to get it thrown out. Who’s right?

It’s true that the postnuptial agreement may be binding because it’s clear that it was entered into long enough ago that you didn’t see a divorce as a possibility. On the other hand, there could be aspects of the agreement that a judge does not allow, depending on what you’ve included in the agreement.

For example, if you have children, you can’t include visitation, child support or custody arrangements in a postnuptial agreement. Why? It’s impossible to predict the best situation for your child in advance, and it could unfairly disadvantage both parents and their children. You also can’t include any kind of provision that would encourage divorce, such as providing a financial incentive upon divorce.

Postnuptial agreements, just like prenuptial agreements, are designed to help with financially based issues. Think of it like a financial contract. Any nonfinancial information you include may not end up being upheld, which is something to keep in mind when you hear that your spouse is trying to fight the postnuptial agreement’s validity.

Our website has more information on postmarital agreements and what you need to do to protect yourself if the agreement you have with your spouse is being challenged during your divorce.