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Could a postnuptial agreement save your marriage?

There are many reasons why one spouse might spend significantly spend more than the other, and they are not all bad. For example, a spouse might be launching a new business and taking out loans to get it off the ground.

Of course, there may also be more problematic causes, such as when a spouse falls into excessive credit card spending habits. When that spending turns into accumulating debt, a couple may need to have a serious conversation about their joint responsibilities. Even if only one spouse incurred the debt, the couple's marital estate might be in jeopardy.

Notably, a recent article examined postnuptial contracts as a marriage preservation strategy. Although not available in every state, they are allowed under Virginia law. Similar to a prenuptial agreement, a postnuptial agreement contractually defines each spouse’s liability for separately incurred debt.

Here's how a postnuptial agreement might work: Under normal circumstances, a creditor would be able to go after any jointly owned assets when collecting the debt, such as a mortgage in both spouse’s names. This outcome might apply even if a spouse took out the debt, such as a credit card, only in his or her name. With a postnuptial agreement, however, the other spouse's liability is contractually limited.

An attorney should be consulted to ensure against errors that might invalidate the postnuptial contract or make it unenforceable on grounds of undue influence or fraud. For example, if the postnuptial agreement were executed shortly before the spendthrift spouse filed for bankruptcy, and the contract shifted all assets to the other spouse, the court might invalidate the agreement as an attempt to defraud a creditor.

Source: CreditCards.com, “Can a prenup or postnup save you from a spouse's debt?” Michelle Crouch, April 18, 2017

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