Phillips & Ingrum

Closing the Barn Door – Post-Nuptial Agreements

By Grayson Cannon

IMG_0191As a domestic relations lawyer I’m a big proponent of Pre-Nuptial Agreements.  They can help define how a couple will divide assets either in a divorce, or at the death of the first member of the couple.  They can protect family assets for children of  previous marriage.  But what happens when the “happy couple” realizes only too late that perhaps they should have taken care of this bit of business before getting hitched?  Is it entirely too late?  Can a couple sign  Post-Nuptial Agreements?

The answer in Tennessee is “maybe, maybe not.”  This type of agreement, when entered into after the marriage has already taken place, is known as a Post-Nuptial Agreement.  Is it possible to close the barn door after the horse has already passed through?  Under the right circumstances, Tennessee courts have answered yes, but only in certain limited cases.

Consideration is a Necessary Part of Any Contract

Any type of agreement regarding the division of property between a married couple is first and foremost, a contract.  Contracts require that one party give, and the other receive, something of value in exchange for the promises in the agreement.  This is known in the law as “consideration.”  So, something of value must change hands to support the Post-Nuptial Agreement in order to make it a valid and enforceable contract.

In the relationship world, the fact that the parties actually marry one another, thus giving up their freedom and their rights as single persons, is generally deemed to supply the consideration for the pre-nuptial agreement.  But if you are already hitched, where’s the consideration?

Consideration May Involve Reconciliation

As a general rule, Tennessee courts have required that in order to supply the consideration for Post-Nuptial Agreements, there must have first been some actual situation in which the marriage was endangered, such as one of the parties filing or threatening to file, a divorce action; or the parties must give up something meaningful.  The consideration for Post-Nuptial Agreements thus can be the agreement to get back together and stay married, foregoing the right to separate or divorce.   Tennessee first recognized this in case law in 1989, in the case of Gilley v. Gilley, 778 S.W.2d 862, 864 (Tenn. App. 1989).

Basically, therefore, our courts have held that just continuing to be married is not enough consideration to make Post-Nuptial Agreements valid; there has to be some benefit and detriment analysis applied to the reason for entering the contract.  The promise must represent a meaningful detriment to the party making the promise.  So, for example, a wife’s agreement to forego a career or the husband’s agreement to go through with a planned adoption of a child he did not really want, have been held not to satisfy the requirement of consideration.  But an agreement entered into because the parties have agreed to stop a divorce proceeding and reconcile, is almost always considered valid consideration to support a Post-Nuptial Agreement.

All in all, it’s way better not to have to be trying to close the barn door after the horse.  However, in certain limited circumstances, it may be possible to do so in the form of Post-Nuptial Agreements.  If you have questions about this or other family law issues, please give us a call; we may be able to help.