Can you get a prenup after you’re married? Short answer: No. Pre-wedding agreements are called “prenups” for a reason! But don’t worry, if you missed the prenup window, there’s still an option. It’s called a “postnuptial agreement” (or “postnup” for short), and it works similarly to a prenup. We dive into all the things you need to know about prenups vs. postnups. why people get postnups, if postnups are enforceable, and more! But first… a quick video on this topic:
What is a postnuptial agreement?
A postnuptial agreement is a legally binding document that outlines which assets belong to each spouse should the marriage end in divorce. This agreement can include property, finances, and any other assets that either spouse may have acquired during the marriage. The agreement allows both spouses to agree on how their assets will be divided in the event of a separation.
What are some drawbacks of postnups?
You may be thinking, “If a postnup is so similar to a prenup, why wouldn’t I just get a postnup?” Let’s dive into some drawbacks of postnups:
- Some states may not be willing to uphold postnups. Postnups are a relatively new legal concept, so there is generally less case law available on the topic of postnups.
- Postnups, in general, are harder to enforce than prenups. Again, even if you are in a state that upholds postnups regularly, it may be more difficult to ask the court to uphold a postnup in comparison to a prenup because of the relative newness of postnups.
- You and your spouse may have already accumulated joint property (i.e., marital/community property) since becoming married, which may be more difficult to split up at this point. Your spouse may be less likely to waive their rights to this already accumulated property at this point.
Why get a postnup?
Reasons for getting a postnup may vary slightly from those that want a prenup. For example, issues may arise during the marriage that didn’t exist before, which sparks the need for a postnup. Here are a few of those reasons:
Changes in Circumstances
People may choose to get a postnup if their financial situation has changed significantly since they got married. Here are some examples:
- If one spouse started a successful business,
- If one spouse ran into a large chunk of money,
- If one spouse decides to become a stay-at-home parent and forgo their career,
- and more.
A postnup can help reorganize the property and make sure both spouses are content with asset and debt division upon divorce and sometimes death.
Communication About Finances
A postnup can be a valuable tool for married couples who want to improve their communication about finances. By creating a clear and concise agreement about how assets will be divided in the event of a divorce, couples can avoid misunderstandings and disputes.
A large gift, wedding gifts, and/or inheritances
If you received an unexpected lump sum of money or a piece of property that you weren’t expecting before the marriage, you might be wondering how to protect it. This is where a postnup might come in to help. You can use a postnup to delineate that any gift, such as a large wedding gift or inheritance, should be considered separate property.
Providing for children from another relationship
You may want to protect your children from another relationship through the use of a postnup. If you get a divorce, you may lose assets to your future ex-spouse. This results in fewer assets overall for your children now and for their eventual inheritance.
Remember, prenups must be completed before the marriage takes place, that is, before the wedding day. Not just the day before either; give yourself sufficient time before the wedding (three to six months).
Clarity and peace of mind
A postnup can provide clarity and peace of mind for both spouses. By having a clear agreement in place, couples can feel confident that their assets will be protected in the event of a divorce.
Your marriage is rocky
If there have been more downs than ups in your marriage, a postnup may help you and your partner protect assets and cut down on divorce costs if you didn’t have a prenup already in place.
Postnup vs. prenup
Prenuptial agreements and postnuptial agreements are similar in many ways, but there are also some key differences between the two. A prenup is signed before the wedding day and outlines the terms and conditions for the division of assets in case of a divorce. On the other hand, a postnuptial agreement is signed after the wedding day and may address any significant changes in circumstances that have arisen since the wedding.
One of the main distinctions between prenups and postnups is the timing of signing the agreement. If you’re engaged and have sufficient time to draft and review a prenuptial agreement with an attorney prior to the wedding day, a prenuptial agreement is the better option. However, if there is limited time to review a prenuptial agreement or you’re already married, a postnuptial agreement is right for you.
The moral of the story? You cannot sign a prenup after the wedding. Your only option after you’re already married is a postnup.
Another difference between prenups and postnups is the basis for signing the agreement. Prenuptial agreements are often signed as a precautionary measure to protect assets acquired prior to the marriage. Postnuptial agreements, on the other hand, are signed to address changes in circumstances, such as inheritance, loans, or the birth of children, that may have arisen since the wedding.
Prenuptial agreements and postnuptial agreements serve similar purposes and offer similar benefits. The choice between the two comes down to timing and the basis for signing the agreement. Whether you choose a prenuptial or a postnuptial agreement, it’s important to work with experienced legal professionals to ensure that your agreement is as valid and enforceable as possible.
Will my postnup stand in court?
Fortunately, in many cases, postnuptial agreements are considered legally enforceable documents as long as standard contractual rules are followed, and the agreement does not contravene state laws. In plain English? Yes, your postnup has a good chance of standing in court as long as you follow certain rules and postnups are enforceable in your state.
Disclaimer: some states may be less likely to uphold a postnup agreement than other states. Postnups are generally harder to uphold in court than prenups.
Even if you live in a state where postnups are regularly upheld, a divorce court still may not always agree with the terms outlined in the postnup. This is why it is critical to work with legal professionals when drafting a postnuptial agreement. An experienced lawyer can advise you on the language and clauses that are most likely to be upheld in court and ensure that your agreement complies with all relevant state laws.
Additionally, it is important to ensure that both you and your spouse fully understand the terms of the agreement before signing it. This can help to avoid any confusion or disputes that may arise in the event of a divorce.
How do I get a postnup?
Now, how do you actually get a postnup? Well, for starters, you will be signing a postnup at some point after the wedding. Whether that’s one day or 15 years after the wedding, a postnup should be completed after you’re already married. Getting a postnup isn’t too complicated; there are a few steps you can follow to ensure you get yourself a legally sound postnup.
Step 1: Consult with a Legal Expert
The first step in getting a postnuptial agreement is to consult with a legal expert in your state. You want to speak with them to make sure postnups are enforceable in your state and that they can help you create a valid postnup.
Step 2: Determine What You Want to Include in the Agreement
Once you have consulted with a lawyer, it’s time to determine what you want to include in the agreement. This might include:
- Which assets will remain yours
- Which assets belong to your spouse
- How debt will be treated
- And more
Step 3: Draft the Agreement
After you have determined what you want to include in the agreement, it’s time to draft it. Your attorney will work with you to create a document that meets your specific needs and complies with state laws.
Step 4: Review the Agreement
Before you sign the agreement, it’s important to review it thoroughly. Make sure that you thoroughly understand all of the terms and that the agreement meets your needs. If you have any questions, your lawyer will be able to answer them for you.
Step 5: Sign the Agreement
Once you have reviewed the agreement, it’s time to sign it. Both you and your spouse must sign the agreement for it to be legally binding, and you may need to have additional things like notaries and witnesses, depending on your state laws.
Final thoughts
The bottom line is you cannot sign a prenup after the wedding. Your only legal marital contract option for outlining marital expectations after getting married is a postnup. Postnups and prenups are generally very similar, but postnups tend to be slightly more difficult to achieve. Your best bet is to get a prenup if you can, but if not, then a postnup is your next best option. Getting a postnuptial agreement can still provide you and your partner peace of mind and protect your financial future.
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]
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