Ever heard the term “postnuptial agreement” and scratched your head? It’s easy to get tangled up in the legal terminology. Breaking it down, “post” means “after,” and “nuptials” refers to the wedding. So, technically, a “postnuptial agreement” could be any agreement a married couple enters into after their wedding day, even one related to divorce. However, the common usage for a “postnuptial agreement” almost always refers to a contract created by a couple who intends to stay married, not to divorce. If a couple is planning to divorce, the agreement they create is typically called a “divorce agreement” or “settlement agreement.” With that said, you may be wondering if you can get a postnup before the divorce. This is a complicated question, so we break it down below.
Yes, you can get a “postnup” before divorce, but it’s usually called something else
Yes, a “postnup” can technically be created for a divorce, but it’s almost always called something else. If you’re searching for “postnups” online because you’re getting a divorce, you’re looking in the wrong place. What you actually need are divorce attorneys (one for each of you) to help create a “settlement agreement,” “separation agreement,” or “divorce settlement.” While a few states might technically use the term “postnup” in this context, that just adds to the confusion. It’s much clearer to use terms like “separation agreement” because that accurately describes what you’re doing: working out the details of your property, finances, and other matters because you are separating.
What is a separation agreement?
A separation agreement (also called divorce settlement, settlement agreement, etc.) is a contract between a married couple who are definitely getting a divorce. It’s an agreement made between the couple to work out property division, alimony, debt, child matters, and more. You can submit a separation agreement that you entered into with your spouse to a judge, and then the judge can review and incorporate it as an enforceable judicial order.
How do postnups and separation agreements differ?
A postnup is usually an agreement between a married couple who wants to stay married. A separation agreement is typically between a married couple who want to get a divorce. In addition, postnups are usually limited in what they may include, for example, most states say you cannot include child matters in a postnup, but you can include child matters in a separation agreement. This is because a separation agreement handles the immediate “now” divorce, whereas a postnup handles a potential future divorce. The court doesn’t want you deciding on child matters, possibly YEARS before a divorce–it might not make sense anymore.
How do you get a separation agreement?
Separation agreements (a.k.a., settlement agreements) are usually not required to get a divorce (but can depend on your state). Regardless, these agreements can help a couple come to an amicable arrangement regarding their financial and life matters. It can also help create a smoother divorce process, which can ultimately save you time, money, and stress down the road. You can get a separation agreement with attorneys or do it DIY, but be careful with DIY, as it still needs to follow your state’s requirements. You can usually create a separation agreement before or after filing for divorce, and you will ultimately attach the separation agreement to other divorce documentation with the court and ask the judge to incorporate the terms into the divorce decree.
The bottom line
The term “postnup” usually refers to an agreement you make with a spouse when you plan on staying married. If you are planning on divorcing, you will need to get a different type of agreement in place (if it makes sense for your situation), which is usually called something along the lines of “a separation agreement” or “settlement agreement.” Separation agreements are the imminent planning of divorce, whereas postnups are planning to stay married, but working out a few issues now.
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: Nicole@Helloprenup.com
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