Prenups are much more common than postnups. This is for a couple reasons. Prenups have been around (legally) for longer in the US and they are between two people who are not yet married yet (and, thus, don’t have complicated, intertwined finances). For these reasons, prenups tend to be favored by courts and lawyers over postnups. But it begs the question: Does that make a postnup any less “good” than a prenup? Let’s get into this question more in depth below.
Postnups vs. Prenups: Which one is “better?”
Legally speaking, prenups are typically “better” if you had the option to pick between the two. However, if you’re already married and you missed your chance to get a prenup, you should still consider getting a postnup. Prenups are generally “better” than postnups (legally) because they are often upheld more so than postnups. Postnups usually receive heightened scrutiny from judges because they are negotiated between two spouses where one person is likely at a disadvantaged bargaining position. For example, one spouse may feel they have no choice but to sign the agreement or else divorce will ensue, which could lead to complicated outcomes with children and finances. So, courts often want to “protect” these vulnerable spouses and apply a “stronger” level of scrutiny towards the documents. On the other hand, when negotiating a prenup, a couple typically does not have much holding them back—they can simply *not* get married.
Requirements for a postnup vs. a prenup
Because postnups and prenups are completely different legal concepts, there are also different requirements in some states. For example, some states may explicitly require legal representation for a postnup to be considered valid, whereas that is generally not true for prenups in most states. In addition, postnups also require something called “consideration,” which is a legal concept that means each party is exchanging something in the agreement, whether it be assets, obligations, or something else. On the other hand, prenups don’t require consideration because the act of getting married is enough.
There are some requirements that are similar between the two agreements. Prenups and postnups both require the same formalities–in writing, signatures, sometimes notarization, and sometimes witnesses. Also, both agreements must be entered into without coercion or fraud. So, prenups technically have less legal requirements than postnups because they don’t require consideration or legal representation (in most states).
Contents of a postnup vs. a prenup
Another key difference between these two contracts is what may go into them. In a handful of states, including California, you cannot include spousal support in your postnup, but you can include it in your prenup. That means, if you’re asking the question of “which is better?” You could argue that prenups are better because you can put spousal support in them, whereas you cannot in postnups. However, BOTH types of agreements do not allow you to handle child support and child custody matters.
The disadvantaged bargaining position postnup theory
Postnups are often viewed with more scrutiny by courts due to the potential for unequal bargaining power. Unlike prenups, which are negotiated by unmarried couples, postnups are proposed within the context of an existing marriage. This can create a dynamic where one spouse may feel pressured to agree to the terms to avoid the emotional and financial upheaval of divorce. Factors like intertwined finances, shared children, and established careers can further complicate matters and influence the negotiating positions of the spouses. In contrast, couples considering a prenup have the option to simply call off the wedding if they disagree with the terms, allowing for more even playing ground.
Devil’s advocate: Why negotiating a postnup between spouses may be just as fair as a prenup
Here’s our hot take: What if the negotiating balance between spouses was actually just as fair as between fiancés to a prenup? There’s a theory called “Bargaining Theory” which effectively says spouses may not actually be at a disadvantaged position in every situation when negotiating a postnup. Initially, it was thought that richer spouses always had the upper hand, but research suggests that’s not always the case. Couples often consider each other’s feelings and try to find solutions that benefit both of them, even if they have different wants. They might even make compromises to keep each other happy. However, everyone still wants the best deal for themselves. So, they’ll negotiate, each considering their options if they were to get divorced. This sets their minimum acceptable terms. Ultimately, they’ll try to reach an agreement that both are willing to accept, much like splitting a pie fairly.
Why postnups are important and useful
Don’t be discouraged. Postnups are still incredibly useful and important and here’s why. Postnups can help work out important issues between a couple. For example, if the couple wanted to get a prenup, but simply missed their deadline to get one, they can still get a postnup. The closer to the wedding this postnup is created the better (less financial intertwining). In addition, if there’s been a significant life change, such as starting a business or a family or changing careers, getting a postnup can be a powerful tool to help sort out any financial matters between spouses. Postnups are also useful for cases of marital turbulence where the postnup acts as a reconciliation between the couple in order to lay out terms to stay married.
When NOT to get a postnup
Okay, so is there a situation or a time when a couple should *NOT* get a postnup? There are two main situations where a couple should definitely not get a postnup and that is (1) One person feels incredibly uncomfortable with the terms of the agreement or (2) The parties are planning on getting a divorce. For one, if you don’t like the terms of the agreement, don’t sign it. Why? Because although postnups can sometimes be hard to enforce, they are still legally binding agreements until proven otherwise. So whatever you sign can and may be enforced. Don’t sign it if you’re not comfortable with it–speak with an attorney. For two, if you’re planning on getting a divorce, you don’t need a postnup, you need to just go get a divorce. That may include drafting a separation agreement, but not a postnup.
The bottom line on whether a postnup is as good as a prenup
Here’s what to takeaway: IF you have the choice between a prenup and a postnup: It’s generally best to get a prenup. They tend to be more enforceable, they have less legal requirements, you can usually include more topics in them, and there’s generally a more balanced playing field when negotiating one. However, that doesn’t mean postnups are useless. They’re still incredibly powerful tools that can help you in certain situations.
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
0 Comments