In case you didn’t know, prenups (emphasis on the pre-) must be entered into prior to marriage. If you are reading this from your honeymoon, don’t panic (Oh, and also congrats!). While you may have missed the prenup boat, you still have options – including a postnuptial agreement. As the name suggests, this is an agreement entered into after you marry. Before you return to your pina colada, let’s find out if a postnup is right for you!
Is it really too late for a prenup?
As soon as you marry, you and your spouse become a partnership in the eyes of the state. This has major implications for your property, assets, and liabilities. Generally, any assets and liabilities obtained during the marriage will be considered joint property of the marriage. Why does this matter? If you and your partner were to divorce, any property that is labeled as joint (AKA marital or community) property, is subject to division between the spouses. That means, if you purchased property or funded a retirement account just for yourself during the marriage, those assets could end up at least partially in the hands of your soon-to-be ex. Nobody wants that!
This is where prenups usually come into play. Prenups are legal contracts between soon to be spouses which are signed, sealed, and delivered prior to the wedding day. Creating your prenup before marriage allows couples to get on the same page and make property decisions before walking down the aisle (in addition to complying with state laws that require you to do so). This can be important because as soon as those wedding bells ring, the switch is flipped giving your spouse the right to alimony and up to half of the marital property should you split. At that point, its too late for a prenup.
What is a postnup?
A postnup is an agreement between spouses who are legally married, and plan to remain married. This differs from an agreement between married spouses who are divorcing – which is known as a separation agreement. So, you can enter into the postnup at any point during marriage, unless you are planning to divorce. The purpose of postnups is very similar to that of prenups. Postnups allow married couples to make decisions regarding separate and marital property designations. Spouses can also use postnups to waive or limit the right to alimony.
Just like a prenup, you and your spouse must enter into the agreement freely and voluntarily. That means, if only one of you wants the postnup, you can’t force the other spouse into it. This can sometimes be a problem post-wedding. Prenups are becoming a matter of course pre-wedding, but once you’re married, you or your spouse may lose the momentum to have the important conversations and make the decisions necessary for your postnup.
Postnups have many of the procedural requirements of prenuptial agreements. Your postnup must be in writing (and not on a napkin!). Prior to entering into the agreement, both you and your spouse need to provide a financial disclosure in which you both provide a full picture of your financial status – warts and all! The agreement should be reasonable and fair. Be aware that if a court considers all or part of your agreement unconscionable, the entire agreement can be invalidated and thrown out. Additionally, even though the agreement is entered into after marriage and kids may have entered the picture by that point, you cannot include any provisions related to child custody and child support in your postnup.
So, how do prenups and postnups differ?
Obviously, the biggest difference is the timing of the agreements. The prenup is entered prior to marriage while the postnup is entered during marriage. Even if you signed your postnup the day after your wedding, the implications are vast. As we touched on above, as soon as you get married, many rights associated with marriage immediately spring to life. For example, you now possess a potential right to alimony. You are also entitled to a portion of marital property. Some spouses may be hesitant to waive these rights once they obtain them.
There are numerous factors at play when it comes to postnups. For example, if either you or your spouse come into a lot of money during the marriage, the less well-off spouse may not want to sign away entitlement to that newfound money or lifestyle. Additionally, if you and your spouse enter in a postnup well into your marriage and the postnup does not adequately provide for one of the spouses, it’s likely that a court will find the agreement unconscionable. Prenups are presumably entered before a marital lifestyle is established. A postnup that deviates sharply from that marital lifestyle may be subject to extra scrutiny by a judge. In fact, some courts give less weight to postnups overall even absent any unfair terms (this varies by state).
Overall, it’s definitely better to get on the same page with your fiancé BEFORE the wedding. Getting married is a big decision and lends itself naturally to discussing other important topics – do you want kids? Where do you want to put down roots? Discussing your finances is another important topic which should be considered. This is especially important if you and your fiancé have differing financial views. Creating an agreement prior to the wedding allows you and your spouse to enter the marriage with a clear plan and peace of mind.
Is a postnup right for you?
So, after highlighting some of the weaknesses of the postnup, why should you consider getting one? Well first and foremost, if you missed out on getting a prenup, a postnup is most certainly better than nothing! Remember, if you divorce with no prenup or postnup in place, division of your property and assets is in the hands of the court.
Aside from that consideration, postnups do offer many advantages for married couples. When couples are creating their prenups, they cannot see into the future to plan for everything. Postnups, on the other hand, allow couples to address issues that pop up during the marriage. One of the biggest examples of an unexpected occurrence during marriage is inheritance. While generally speaking, inheritance is treated as separate property, actions of the receiving spouse can easily undo that designation. For example, depositing your inheritance into a joint account can result in the funds being considered marital property. If you want to keep your inheritance separate, addressing its designation in a postnup concretely documents the spouse’s intent to keep the property separate.
If one spouse decides to forego their career and stay home with the kids, a postnup can also address that change in circumstances and ensure that the stay-at-home spouse is provided for. Postnups can also plan for the death of a spouse. This is common when a couple has children from a prior marriage. In that case, the surviving spouse can waive their right to receive some or all of the deceased’s spouse’s property thereby allowing the property to pass to the children.
If you are considering a postnuptial agreement, be aware that rules governing the agreements vary by state. Check out your state’s requirements before drafting your agreement to ensure your postnup is rock solid. Also visit HelloPrenup.com to learn more about postnups and prenups!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]