Think you missed the boat because you got married without a prenup? It may be too late for a prenup, but have you considered a postnup? Don’t worry, it’s not too late! Enter, “postnuptial agreements,” the lesser-known sibling of prenups. While a prenuptial agreement is drafted, entered into prior to marriage, a postnup is entered into by a married couple during the marriage. Let’s dive into the differences between these two contracts and find out if entering into a postnup could be right for you.
What is a postnuptial agreement?
A postnuptial agreement is an agreement between legally married spouses who intend to remain married. In many states, a postnup cannot be made in contemplation of a divorce – which is considered “divorce planning.” Otherwise, postnups can be entered into at any point during a marriage, and generally allow couples to choose how they want to consider their interest in property in the event of a divorce, waive alimony rights and/or rights to marital property or determine what property should be non-marital.
Prenups v. Postnups
The basics of contract law apply to both types of agreements. So, both prenups and postnups need to be in writing and need to be freely entered into (no coercion, duress, fraud, etc.). They also can’t contain any unconscionable provisions. Additionally, like prenups, postnups require full financial disclosure from both parties. Similarly, postnups cannot include binding provisions related to child support and child custody issues.
While there are a lot of similarities, prenups and postnups are not exactly the same. In fact, prenups are the preferred option. Prenups allow you to take control of your marital finances prior to the marriage. So, after you walk down the aisle, no matter if you separate in 72 days (hey Kim K!) or 72 years (…or hopefully never!) the courts know from the get-go how you want your assets divided and how you would like to handle alimony. The important distinction here is that the agreement is made prior to marriage.
Postnups are a little trickier. Once you are married without a prenup, your divorce (including property division and alimony) is subject to the laws of your state. One spouse may be more hesitant to waive their rights to alimony at that point, for example. Alternatively, if one spouse comes into a lot of money during the marriage and the other spouse is not adequately provided for in the postnup, courts (in some states) may be hesitant to find the agreement enforceable. In most cases, it’s better to be on the same page about your finances before you enter into your marriage. It’s also important to know that courts don’t always give postnups the same weight as prenups (this varies by state).
Why get a postnup?
So, with that in mind, why should you have a postnup? The reasons for entering into a postnuptial agreement can be slightly different than those for entering into a prenup. While both agreements allow the parties to control alimony and division of property in the event of divorce, postnups allow a couple to address issues that pop up during the marriage. For example, perhaps one spouse receives a substantial inheritance several months or years into the marriage which they want to protect. Enter the postnup! While inheritances are traditionally treated by the courts as separate property, commingling of the money can cause the sum to become marital property. Postnups are great in this situation as they can concretely document the spouses’ intention to keep the money as non-marital property.
Postnups can also come in handy when there is a change of circumstances during the marriage. Perhaps one spouse strikes it big in business or maybe decides to forego their career to care for the couple’s children. These are issues that can be addressed in a postnuptial agreement. Another big issue arises when couples go into business together. What happens to the business if the couple splits? A postnup can help the couple be prepared in the event of divorce and make the process smoother both personally and professionally.
Yet another popular reason to get a postnup is for estate planning purposes. This may not be something that a couple considers prior to getting married. Children and financial changes may spark the question: what happens if you or your spouse dies? Your postnup can specify what happens to marital and separate property upon the death of a spouse. For example, couples can elect to waive their rights to their spouse’s separate property should the spouse die. A couple may want to do this if one spouse has children from a previous marriage that they want to protect and provide for.
Here are a few other reasons a couple may want a postnuptial agreement:
- Division of family heirlooms
- Division of family businesses
- Division of large wedding gifts
- Providing for children from a previous marriage
- Simplifying and streamlining the divorce process
- Absence of prenuptial agreement
Like a prenup, the rules governing postnups vary by state so be sure to check the requirements for your state before drafting your agreement.
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].