If I am facing a lawsuit is my wife's assets protected?
A postnuptial agreement is a written contract created by two people after they are married. The agreement typically lists all of the couple's property, including assets, liabilities, income and expectations of gifts and inheritances, as well as their post-marital debts. A postnuptial agreement specifies how post-marital property, as well as the appreciation, gains, income, rentals, dividends and proceeds of such property, should be distributed in the event of death, separation or divorce, rather than protecting assets from creditor claims against debts of a spouse. It will generally be upheld by the court if it was entered into knowingly, freely, and fairly. It may be invalidated if dishonesty, fraud, coercion, or duress is involved. The spouses should disclose their assets and debts in writing and have the opportunity to consult an independent attorney.
Property, such as real estate, bank accounts, etc., held under the names of both spouses may be held as joint tenants, tenants in common, or tenants by the entireties. Courts have held that property owned by husband and wife as tenants by the entireties may not be sold to satisfy the debt of only one spouse. However, property held as joint tenants who are not tenants by the entireties, may be sold to satisfy the a sole debt of one owner, up to the amount of that debtor's equity in the property. The non-debtor owner will receive the balance of his share of equity in the property from the sale.
A free trader agreement may be used between spouses to agree that neither will create any obligation in the name of or against the other, nor secure or attempt to secure any credit upon or in connection with the other, or in his or her name. Each party agrees to promptly pay all debts and discharge all financial obligations which he or she may incur for himself or herself, and shall indemnify the other against any and all debts and other obligations which he or she may incur.