Whether you’re looking to get a prenup or a postnup, you may be considering (or required to get) an attorney. Now, what is the difference between a prenup attorney and a postnup attorney? The main difference is whether the attorney specializes in each agreement. There are some attorneys who only do prenups but not postnups. On the flip side, most attorneys who do postnups often also do prenups. Both prenup and postnup attorneys fall under the umbrella of “family law attorneys” and may also do other family law matters, such as divorce, adoption, custody, etc.
Prenups vs. Postnups
Before we dive in, we want to give you a quick overview of the differences and similarities between prenups and postnups. Prenups are contracts executed BEFORE the wedding. Postnups are executed at any point during the marriage (one day after the wedding or twenty years after the wedding, doesn’t matter). Prenups and postnups sometimes have different legal requirements (depending on your state). For example, some states require a higher level of consideration and also legal representation for a postnup, whereas that is not the case for a prenup. Finally, postnups and prenups are often entered into for different reasons. Postnups are entered into by married couples, often triggered by some event, such as receiving a large inheritance or marital issues. On the other hand, prenups are often entered into as a default step in the marriage process rather than a triggering event in the relationship.
Why attorneys often specialize in prenups more so than postnups
There are a few reasons why attorneys tend to do prenups more than postnups. First, postnups are a relatively newer legal concept in which some states have been slower to adopt. For example, in Nebraska, postnups are against public policy, so no lawyers are doing postnups there. Second, postnups are more heavily scrutinized by courts in most states. This means a judge is going to take a much closer look at a postnup than a prenup, which risks the enforceability of the agreement more so than a prenup. Third, postnups tend to be requested less often than prenups. While that’s not true for every attorney in every state, this is typically the case.
Skills needed for prenups vs. postnups
The skills required for a prenup and a postnup are very similar. They both require knowledge of the law in the particular state, contract drafting skills, negotiation skills, and critical thinking/problem-solving skills. For example, both prenup and postnup attorneys need to understand the enforceability requirements for both agreements (things like notarization requirements, voluntariness, financial disclosure requirements, consideration requirements, etc.). In addition, both types of attorneys need to understand the general enforceability of each contract–what contracts their state courts tend to enforce. On top of that, there may be negotiation in both a prenup and postnup, so the attorneys should be able to negotiate without creating a hostile environment. Finally, both types of attorneys need to have critical thinking skills and problem-solving skills to fit their client’s needs into the marital agreements
Questions to ask a prenup attorney
If you’re going to get a prenup attorney, here are some questions you should consider asking:
- What are the requirements for a valid and enforceable prenup in my state?
- What is the most common reason you have seen that prenups get thrown out?
- What is your experience with [insert specific assets/debts/inheritances you are concerned with]?
- What are some common clauses you include in your prenups that are enforceable in my state?
- What is your approach to negotiation?
- Is amending a prenup possible in my state, and what would be the process if we want to make any changes in the future?
- What is your fee structure? Are flat rates or sliding scale based on income rates available?
If you have really specific questions about your particular case, feel free to throw those in there too!
Questions to ask a postnup attorney
If you’re already married, then getting a postnup is your only option (you can’t get a prenup after you’re married). If you’re hiring a postnup attorney, here are some questions you should consider asking them:
- Are postnups enforceable in my state?
- How often are they thrown out in your experience, and what is the most common reason?
- What are all of the requirements for a valid and enforceable postnup in my state?
- Do you have experience with [insert asset type here]?
- How do you approach negotiations with my spouse?
- Would it be beneficial to ratify our postnup at a certain frequency, such as once every three years?
- How would we amend our postnup, if necessary?
- What are your fees and do you do flat rates/sliding scale fees based on income?
You may also want to ask any highly specific questions about your unique situation.
When to consider a prenup
First things first: you can ONLY get a prenup if you aren’t married yet. And the good news is that getting a prenup is a great option for anyone–regardless of wealth. Prenups can outline terms for the marriage and can lay out a roadmap for the future. At this point, no marital assets have been accumulated yet, so you can set the rules for how that will work. Prenups are a great idea for any couple even if you know you’ll be married forever and ever, because they also help work out marital matters, too, such as joint bank accounts, budgeting, etc. In fact, according to a HelloPrenup survey, 83% of couples felt closer together after going through the prenup process, so it can be a good first step before marriage.
When to consider a postnup
A postnup can also be good for any couple wanting to clarify their finances in the marriage if they missed their window of opportunity for a prenup. For example, you didn’t have time to get a prenup, so you start the postnup process after the wedding day.
Postnups can also be good for couples who have experienced a drastic change in finances since their wedding day. Think: winning the lottery, starting a business, receiving an inheritance, major career changes, staying at home with the children, etc.
Another potentially good time to consider a postnup is if the marriage is experiencing a breakdown, but the couple still wants to stay married. The postnup can act as a reconciliation tool to help outline certain terms of the marriage. For example, some couples experiencing infidelity may turn to a postnup to ensure the innocent partner is protected in the event it happens again.
Bottom line on the difference between a prenup and postnup attorney
The bottom line is that prenup and postnup attorneys are generally the same. Some people only do prenups. Some people do prenups and postnups. Rarely do you see an attorney only doing postnups, but it’s possible! Prenup and postnup attorneys possess the same skills–knowledge of the law, negotiation skills, contract drafting skills, problem-solving skills, and critical thinking skills. Make sure to ask the attorney you are speaking with if they specialize in prenups/postnups and determine which agreement makes sense for you! Happy planning!
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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