Imagine that you’re married, living your life the way you imagined you would, and then financial tensions begin to creep in. Or perhaps a business is sold, a career shift happens, or family wealth enters the picture. Suddenly, questions about fairness, contribution, and support start bubbling up. That’s where a postnuptial agreement can act like a soothing balm on the marriage, offering clarity before contention. But can a postnup help avoid having a contested divorce? And, what exactly does a postnup do? Continue reading to find the answers to your questions and to learn more about postnups.
Postnups can prevent the most common marital fights
Postnuptial agreements are contracts created after marriage to spell out how property, support, and finances will be handled if you separate or divorce. Unlike prenups, which happen before “I do,” postnups let you address issues that only surfaced once the real-life marriage began. Hello blended finances, business changes, new debt burdens, or job shifts! In many relationships, money is the loudest argument. But when it’s already defined in the form of a postnup, suddenly it’s not. A thoughtfully constructed postnup can reduce tension, minimize ambiguity, and steer a marriage away from courtroom battles.
The gift of clear expectations
A postnup works best when it’s collaborative, not leveraged. Signing one doesn’t mean you think you’re heading for divorce. Signing a postnup means that you’re investing in clarity in your marriage. Similar to a prenup, postnups require that both parties fully disclose their financial situation. This includes income, assets, and debts. This kind of genuine financial transparency can be a gift to a relationship. Countless marriages struggle under the uncertainty of financial ambiguity and mistrust. Collaborating on a postnup allows couples to put all of their cards on the table, discuss what’s important to each of them, and make decisions now so they don’t have to repeatedly fight over them for the rest of the marriage. With many of the financial issues settled, married couples can focus on the best and most enjoyable parts of marriage.
Lowering the legal volume
Everybody knows that divorce is expensive. But the expense is not just financial. Divorce takes an emotional and mental toll on everyone involved. When key decisions like classification of assets, spousal support, and division of property are outlined ahead of time, couples bypass a lot of the conflict that takes the most time and therefore money in a divorce. Postnups make the path toward settlement much smoother. When a marriage comes to an end, couples need to agree on countless details before a divorce settlement can be reached.
The number of topics that soon-to-be ex-spouses must agree on before they can finalize a divorce is even more extreme when it’s a long-term marriage. A postnup can decrease the amount of categories and topics that need to be negotiated significantly. You can imagine how much this would decrease your legal bills and the time spent in court and a lawyer’s office. It’s very possible that because the most important topics were already agreed to in a postnup, that a couple will be able to have an agreed divorce and avoid the drama and expense of a contested divorce altogether.
Managing surprises and levels of trust
Nothing derails a conversation faster than a financial bombshell dropped mid-divorce. A well drafted postnup anticipates these by clearly stating who gets what, and why. That built-in transparency saves trust and reduces heat in an already emotional time. The very act of negotiating and signing the agreement promotes communication and mutual respect. These are two pillars that make contested proceedings less likely and less necessary.
Legal standards and the fine print
That said, not every postnup holds up in court. Since postnups are an agreement between husband and wife, courts typically scrutinize these agreements more closely than prenups to ensure they weren’t signed under emotional duress or unfair advantage. Married couples owe each other a duty of fiduciary duty, which is the highest standard of care one person can owe to another under the law. So it’s critical that your postnup was entered into voluntarily and follows your state’s requirements for a valid and enforceable postnup. States vary, but in general, enforceability hinges on a few shared standards:
- It must be in writing and signed by both parties
- It must be entered into voluntarily by both parties
- There must be consideration for signing the agreement
- It must be fair at the time of signing, with full financial disclosure
- The terms must not be severely one-sided (i.e. unconscionable)
- It can’t contain clauses that act as a penalty or encourage divorce (i.e., “you get more alimony if you file”), which some courts see as against public policy
Talk with an attorney in your state who’s experienced in postnuptial agreements. They should be able to help ensure your agreement meets your state’s requirements for enforceability.
A postnup can ease a divorce and even save a marriage
On occasion, a postnup helps couples avoid divorce and separation altogether by addressing issues proactively and treating the agreement as a symbol of partnership, not exit. Couples have been known to use a postnup as a pause before divorce to try to get on the same page with their spouse. If couples who are heading towards divorce can work out their major argument points, there’s a chance a postnup can save a marriage. Postnups are especially helpful when marriages involve blended families, business ownership, household income disparities, or inheritances. These circumstances are ripe for tension, but also, with agreement, ripe for mutual planning.
Final word on how postnups can help couples avoid a contested divorce
If you’re wondering whether a postnup might help keep your marriage off lower court dockets, here’s what the trend shows:
- Clear agreements mean less ambiguity and fewer reasons to fight
- Fair, voluntary, transparent agreements are more likely to be enforceable and reduce litigation
- Knowing what to expect, financially and legally, can preserve trust and peace of mind when things get rocky
A postnup can help avoid a contested divorce, especially when crafted thoughtfully, honestly, and collaboratively. The financial clarity that’s gained during the postnup drafting process isn’t just emotionally helpful, it can help throughout your divorce. Even if you end up in a contested divorce, judges often adhere to the words in a properly executed postnup, meaning fewer disputes over property, fewer surprise claims, and fewer reasons to argue. If you think a postnup is the right decision for you and your spouse, make a plan to sit down together and make these important financial decisions sooner rather than later.
Suzanne specializes in helping families plan for their futures, from the prenup stage through the trust and estate planning stage, so that families can have peace of mind and confidence knowing that they’ve protected what they love the most.
Suzanne is an experienced attorney with specific, specialized expertise in family law, estate planning, and criminal and civil litigation. She has been practicing law for 16 years and truly enjoys serving her clients at the highest level.
Suzanne knows that every family situation is unique, and she is passionate about creating a plan and designing a prenup that works to protect you, your future, and your family.
Suzanne lives with her family in Tucson. When not in her legal zone, Suzanne loves outdoor running, all things fitness, spending time with her kids, and traveling. Disney is a top favorite!
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