Nashville, TN family law attorney Anne Hamer talks about in what situations a couple should consider a postnuptial agreement. She points out that postnuptial agreements are among the most complex contracts she drafts. Unlike prenuptial agreements, which parties enter into before marriage and are supported by the marriage itself as consideration, postnuptial agreements require separate legal justification because the marriage has already occurred.

She notes that in Tennessee, the Supreme Court has clarified that consideration can exist if the parties are reconciling. For example, if one spouse has filed for—or intends to file for—divorce, and the other spouse offers, “I will stay in the marriage if you agree to these terms,” that promise can constitute valid consideration. In this context, a postnuptial agreement can be enforceable.

She remarks that a postnuptial agreement cannot be based on arbitrary incentives. Simply asking a spouse to divide lottery winnings in the event of a future divorce is insufficient. There must be a demonstrable reason, such as a genuine intent to leave the marriage, that evidences consideration. The agreement must reflect a negotiated arrangement where both parties have valid motives and the court can recognize the contract as legitimate.