Postnups are on the rise. There’s no question about it. They are contracts you sign with your spouse during the marriage. They are meant to help promote marital harmony, so if you are already planning on getting a divorce, a postnup isn’t for you. However, sometimes, if a divorce eventually does occur, a postnup can help speed up your divorce proceedings and save you money. In this blog, we’ll discuss how postnups affect divorce (asset division, spousal support), how they can speed it up, how challenging a postnup works, and more. Let’s dive in.
What’s a postnup anyway?
A postnup (formal name: postnuptial agreement) is a contract between two spouses, signed during the marriage, with no intention of divorcing. Postnups are different from prenups because they are signed when the parties are already married—prenups are signed before the wedding day. Postnups are typically signed between two spouses who missed the timeline to get a prenup, are experiencing marital issues, or have had an unexpected, drastic change in financial circumstances. Postnup requirements vary by state, but most states agree that postnups should be free from duress, be signed by both parties and benefit both spouses in some way.
How postnups affect asset division in divorce
Without a postnup, assets in a divorce are divided by state law. Some states say everything that is part of the marital estate is 50-50. Other states say things should be divided equitably, which may mean 60-40, 70-30, or something else, depending on different factors such as the ages of the parties, each person’s contributions, etc. That is for a judge to decide.
With a postnup, you are effectively overriding these default state laws by pre-determining how asset division should go. If you live in a 50-50 state, but your postnup is enforced and says things should be split 70-30, then that is what will happen!
For example, let’s say John and Melissa have a postnup. Their postnup says John gets to keep the business, and Melissa gets to keep the retirement fund. However, their joint bank account is marital property and should be divided. Then, if the postnup is enforceable, a court will abide by these rules and only divide up the joint bank account, as outlined in their agreement.
The impact of postnups on spousal support during a divorce
Spousal support (a.k.a., alimony) is the financial support paid from one spouse to the other in the event of a split. This may be paid during the divorce proceedings or for a period of time after the divorce is final. Without a postnup, a court will utilize state laws to determine if it’s appropriate and, if so, how much should be awarded and for how long.
With a postnup, you can limit the amount of spousal support to be paid or waive spousal support altogether. However, there are a few states that do not allow you to waive or limit spousal support in a postnup, so make sure to check with your state laws.
For example, let’s say Alyssa and Amanda are married. Alyssa and Amanda are both completely financially independent and have no desire to seek spousal support from one another in the event of a divorce. In their postnup, they agree to mutually waive their rights to spousal support. This means neither person can seek spousal support during the divorce proceeding.
The impact of postnups on child support and custody
We’ll cut to the chase—there is no impact from a postnup on child support and custody because postnups legally cannot address these issues. The matters of child support and custody are always determined by a court at the time of the divorce, based on what is in the best interests of the child. This is because courts don’t want parents contracting away the rights of the child (the right to support and the right to proper custody), it is not their right to give up or maneuver, it’s the child’s.
Postnups speed up and lower the cost of divorce proceedings
One of the key ways a postnup affects a divorce proceeding is by speeding it up, which ultimately brings the cost down. Having a postnup in place means that you’ve already decided on property division matters and spousal support matters. If the postnup is enforceable and goes unchallenged, you can speed through those issues and get right to the child matters (if you have children). The less time you take arguing over property division and spousal support, the less money you have to pay your lawyers. Win-win!
Challenging a postnup during a divorce proceeding
Challenging a postnup is no easy feat. It takes time, energy, and money to challenge and fight a postnup. However, it’s not impossible to do. A person may challenge a postnup on certain grounds:
- Unconscionability (extreme one-sidedness)
- Duress/coercion/fraud
- Lack of proper formalities (not in writing, not signed, etc.)
- Lack of the opportunity to seek legal advice
- Lack of proper financial disclosure
If someone wants to challenge a postnup, the divorce proceedings are the time to do it. Here’s how it generally works: The party wishing to challenge the agreement must typically file a motion or petition with the court as part of the divorce proceedings. This filing will outline the specific grounds for the challenge, providing evidence and legal arguments to support the claim that the postnup is invalid or unenforceable. The other spouse will eventually have the chance to respond with their own evidence of the postnup’s enforceability.
Ultimately, the judge will review the evidence and arguments presented by both sides and determine whether the postnup is enforceable under the applicable state laws.
The bottom line on how postnups affect divorce proceedings
Divorce proceedings are affected by postnups by pre-determining certain issues, such as property division and spousal support. However, postnups never deal with child support and custody. But even having your property division and spousal support issues already worked out through a postnup can help speed up the divorce process, ultimately saving you money. You can set the rules in a postnup and override the default laws in your state. This allows you to take control of your destiny.
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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