Ever heard of a “postnup”? It’s like a prenup, but you make it after you’re already married. Think of it as a guideline for your marriage, just in case things don’t go as planned. More and more couples are using them these days to figure out who gets what if they split up.
But here’s the thing: creating a postnup can be tricky! Lots of people make mistakes that can totally mess up their agreement.
In this article, we’re going to break down the biggest postnup blunders and show you how to avoid them. That way, you can create a postnup that actually works and helps you avoid a messy legal battle down the road.
Mistake #1: Failing to Consult a Lawyer
Depending on your state, having a lawyer sign off on your postnup may be a requirement. However, even if you’re in a state where it’s not strictly required, it’s still highly, highly recommended because postnups can be a minefield in the legal world. Postnups are often subject to greater scrutiny than prenuptial agreements due to their creation after the marriage has begun, potentially in circumstances where one spouse may be at a disadvantage. This is why having a lawyer can help show that neither party was coerced into signing under some disadvantageous circumstances.
Plus, hiring a lawyer has many benefits, such as guiding you through the complexities of state laws, property division, and other critical elements, providing you with peace of mind, and protecting your interests.
Mistake #2: Not Clearly Providing the Values of Assets and Debts
Financial disclosure is a requirement for a valid postnup. You must clearly outline what assets each spouse owns and the value of each asset. This also includes debts and future inheritances. No hiding or skimming over stuff. Without accurate financial disclosure in a postnup, one spouse can argue that they weren’t fully aware of the financial situation and made decisions in the postnup based on false information. This could lead to the postnup being thrown out.
Mistake #3: Ignoring State Laws
Laws regarding postnups vary significantly from state to state. Some states are more lenient, while others enforce strict rules about what can and cannot be included and what is required for a valid postnup agreement. For example, in some jurisdictions, a postnup must be signed in front of two witnesses and a notary public. In other states, spousal support may not be allowed in postnups.
By not understanding the legal landscape in your state, you may unknowingly create an agreement that doesn’t hold up in court. Consulting a lawyer familiar with your state’s laws is critical in ensuring your postnup is valid.
Mistake #4: Not Considering Future Changes
Life is constantly changing—our finances, what we own, even what matters most to us. A good postnup gets that. It takes into account things like a big raise (or a job loss!), buying a house, or having kids.
The best postnups are flexible and allow for updates down the road. This helps couples deal with life’s curveballs without ending up in a dispute.
Of course, you don’t need to be a fortune teller to create a solid postnup. Life happens, and change is inevitable. That doesn’t mean your agreement is automatically useless. But if your agreement is too rigid and life takes a sharp turn, it might lead to some disagreements.
Mistake #5: Duress or Coercion
One of the biggest red flags in any legal agreement, including postnups, is duress or coercion. If one spouse is overly pressured, forced, or manipulated into signing the agreement, it could be deemed invalid. Both parties must enter the agreement voluntarily.
One way to show that a person has voluntarily entered into an agreement is by hiring an attorney. This shows that each person had legal advice and an advocate to help them back out if they wanted and/or create terms that were beneficial to them.
Mistake #6: Not Having the Agreement Notarized
One common mistake that can render a postnup unenforceable is failing to have the agreement notarized. While not strictly required in every state, notarization helps ensure that the correct parties signed the document and that they knew what they were signing. It speaks to the notion that each party voluntarily and knowingly entered into the agreement and negates most arguments that one party didn’t actually sign it. Plus, in the states that require notarization for a postnup to be valid, the agreement might be thrown out by a court if not done correctly.
Mistake #7: Ambiguous Contract Language
If the postnup has ambiguous language strewn about the document and one day, a couple is disputing over the meaning of the terms, a court could take a look at the document and declare that it is too ambiguous and throw it out completely. Why? Because if a judge can’t understand what the document is saying, then how can they enforce the terms within? For example, if one section of the document says income is separate property and then in another section it says income is marital, that could be considered ambiguous and difficult for a judge to rule on.
Mistake #8: Creating Unconscionable Terms
“Unconscionable” basically means overly one-sided. It’s a legal term courts use to say that something “shocks the conscience” and that no reasonable person would sign it based on how unfair the terms are. Courts can throw out an agreement if it’s considered unconscionable. The definition of what is unconscionable varies from state to state. Generally, leaving someone destitute or giving them nothing while the other person gets everything is a fast-track route to getting a postnup thrown out for unconscionability. However, there are other ways a postnup could be deemed unconscionable, so this is where hiring a lawyer also comes in handy.
Mistake #9: Including Terms Against Public Policy
Each state has its own public policy on what is allowed in a postnup. Virtually all states say that you cannot include terms about child support and child custody. The child’s best interest should be the #1 consideration, not a contract made between their parents. For example, if a couple made a contract saying neither party shall be responsible for child support, and then upon divorce, the child is left destitute without financial support, that’s completely unfair. Hence, why it is against public policy. You just can’t include terms about child support or child custody whatsoever in these marital agreements. In addition, there are a few states that say you also cannot include terms about spousal support either for the same reasons.
And don’t forget about other terms that may be against a state’s public policy, such as infidelity clauses, weight gain clauses, illegal acts, etc.
Mistake #10: Not Feeling Comfortable With The Terms You’re Signing
Last but not least, it’s very important to be comfortable with any contract, especially a postnup, that you sign. Your postnup, your terms. Remember, you have the right to negotiate and make sure the agreement is fair and reflects what you want. Don’t be afraid to speak up, ask questions, and make changes until you feel completely comfortable signing. This is about your future, so make sure your voice is heard. For example, if you just mindlessly sign off on a postnup that your spouse is pressuring you to sign, you generally cannot later change your mind. “Buyer’s remorse” isn’t an argument to getting a postnup thrown out. It’s your responsibility to read the terms and only sign it if you truly are ok with the terms.
Final thoughts
So, bottom line? Postnups can be a really helpful way to protect yourselves financially and be clear about what you both expect in your marriage. But, like anything legal, there are definitely ways to mess it up.
Just remember the key takeaways from this article, and you’ll be on the right track. Talk to a lawyer, be open and honest with each other, and make sure your agreement works for both of you and follows the rules in your state. Do that, and you’ll be setting yourselves up for a solid financial future together!
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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