Ever wished you could hit “rewind” on some of your financial decisions after getting married? Maybe you started a business, received an inheritance, or simply want a clearer picture of who owns what. That’s where a postnuptial agreement comes in – a marital contract that lets you and your spouse adjust your financial course after saying “I do.” But what is the role of a postnup attorney, you ask? Well, they are sometimes required by state law and in other states, they’re highly recommended. Let’s dive into everything you need to know about postnups and postnup agreement lawyers.
What is a postnuptial agreement?
A postnuptial agreement (or, as we like to call them, postnups) are agreements between two spouses who want to work out certain aspects of their marriage and finances. Postnups have certain requirements, such as notarization and financial disclosure that may be slightly different than the requirements for prenups, depending on the state law.
Postnuptial agreements often have a more focused scope than prenuptial agreements. While prenups typically cast a wide net, addressing a broad range of future financial concerns, postnups often pinpoint specific issues that arise after the marriage has begun.
Think of it this way: a prenup is like creating a comprehensive financial roadmap for a journey you’re about to embark on. A postnup, on the other hand, is like making a course correction along the way.
What are the requirements of a postnup?
Each state sets out the legal requirements for a postnup. What is required of a California postnup may not be the same as the requirements of a New York postnup. With that said, there are several requirements that are generally required in most states for a postnup to be valid and enforceable:
- It must be in writing and signed
- It must be notarized
- Some states require witnesses
- There must be adequate consideration (meaning both parties “promise” something to the other in the contract)
- The postnup must have sufficient consideration (this is a legal term meaning each party “gets” something in exchange for signing the document)
- Both parties must provide the other with full financial disclosure of all assets, income, debt, and inheritances
- It must be entered into voluntarily by both parties (no duress or coercion)
- The agreement must be reasonable, with at least one provision in favor of each spouse
- Both parties must understand what they’re signing
Note: These are the general requirements, though some states may not require all of the above or may require something more. For example, Minnesota statute Minn. Stat. § 519.11 requires couples to have legal representation for a postnup to be valid and enforceable.
Who needs a postnuptial agreement?
Since postnups are much less common than prenups, you may wonder who needs one or why people get them. Great question! People tend to get postnups for the following reasons:
- They missed the opportunity to get a prenup. (Prenups must be signed before the wedding day).
- They had a significant change in finances and want to sort it out. For example, receiving a large inheritance, starting a business, or winning the lottery.
- They learned the value of a prenup, but they’re already married, so they simply want to sort out their finances the only way they can at this point, since they’re already married.
- They are experiencing marital issues, such as infidelity or financial issues.
- They experienced unexpected life changes, such as having children when not previously expecting to, caring for elder family members, or having new illnesses/disabilities.
- They want to protect their children from previous relationships by ensuring those children get their assets upon death and not their second/third spouse.
What’s important to understand is that you do not get a postnup if you are planning on getting a divorce. A postnup is for couples who plan to stay married. If you are planning on divorce, you should reach out to an attorney to help you with a divorce settlement agreement instead.
What is the role of a postnup lawyer?
Now, let’s talk about the role of a postnup lawyer. Although most states don’t require lawyers for postnups, having experienced legal counsel is highly recommended and, in some states, essential, such as in Minnesota (Minn. Stat. § 519.11).
Why? Because postnuptial agreements face greater scrutiny by judges than prenuptial agreements. Judges generally are required by state law to hold postnups to a higher standard, ensuring that neither spouse is taking advantage of the other. Having an attorney helps reassure the court that each party was advised of their rights and what they were waiving.
What are the benefits of hiring a postnup lawyer?
If you’re in one of the states where a postnup lawyer is not required, we’re here to tell you why it’s still so important to hire a postnup lawyer anyway. Here are the benefits of a postnup lawyer:
- State-Specific Laws: A lawyer specializing in family law will be well-versed in your state’s specific requirements for postnuptial agreements. For example, Minnesota law explicitly mandates legal representation for both parties (Minn. Stat. § 519.11). In other states, having an attorney significantly strengthens the agreement’s validity.
- Protecting Your Interests: An attorney acts as your advocate, ensuring your rights are protected and the agreement is fair. They can help you understand the implications of the agreement and negotiate terms that meet your needs.
- Ensuring Enforceability: A lawyer drafts the agreement with precision, adhering to legal standards for validity. They ensure full financial disclosure, a key factor in preventing future challenges.
- Peace of Mind: Having legal counsel provides reassurance that your agreement is sound and will hold up in court if ever challenged.
Ultimately, a postnuptial agreement lawyer provides expertise and guidance, giving you confidence in this important legal document.
The bottom line on postnup lawyers
Postnups are contracts made between two spouses who are already married. Because the legal landscape around postnups is shakier, it’s recommended that you hire an attorney to ensure the enforceability of your postnup, though it’s not always explicitly required in every state. Not only can hiring a lawyer boost your chances of enforceability of the document, but they can also help answer your questions, ensure your agreement is tailored to your needs, and provide you with peace of mind.
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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