Alright, folks, it’s time to tackle one of the burning questions we get asked a lot here at HelloPrenup. Cue the drumroll… What’s the difference between prenuptial agreements, a.k.a. “prenups,” versus postnuptial agreements, a.k.a. “postnups”? Well, they’re pretty similar in many ways, but there are two big differences: when they’re drawn up and how legally binding they are. So, let’s roll up our sleeves and dig into the juicy details of what makes prenups and postnups tick, who should consider each, and much more. Let’s dive in!
Similarities between prenups and postnups
Both of these marital agreements have a lot in common, like their ability to spell out assets. Let’s take a closer look at all of these similarities down below.
- They both can outline how assets and income will be divided and managed in the event of divorce or death.
Arguably the most common reason for both a prenup and a postnup is to outline the ownership of assets in the event of a divorce (and sometimes death, but should also be done in conjunction with estate planning). This can include both assets you bring into the marriage and assets that don’t exist yet that you will accumulate during the marriage. Here’s a practical example: Suppose you want to safeguard the house you bought a decade before tying the knot and also protect your future income. You can achieve this goal through both types of agreements.
- They both can clarify financial responsibilities during the marriage, such as ownership of property, tax returns, and joint accounts.
These marital agreements are not only for what happens in a divorce. They are also great for setting expectations for during the marriage, as well. For example, stating who has management and control rights of their separate properties. Another marital responsibility that can be dictated by either agreement is how tax returns will be filed and whether or not joint bank accounts will be held (and how those will be managed).
- They both can address spousal support/alimony.
This is pretty straightforward–both agreements may delineate waivers of spousal support and/or modification of spousal support. For example, you can waive your right to receive alimony from your partner in both a prenup and a postnup.
- They both can address debt ownership and management.
Both agreements can address who is responsible for certain debt, both brought into the marriage and accumulated during the marriage. For example, making sure any credit card debt and student loans stay with the person who borrowed it.
- They both can address confidentiality.
In either agreement, you may add a clause about confidentiality and ensuring that your private information stays private, even in the event of a divorce. Private information can include financial info, personal info, and family info.
- They both can address alternative dispute resolutions.
Both agreements can lay out the process for getting a divorce, including alternative dispute resolutions such as mediation. For example, if you two really want to avoid a lengthy and adversarial divorce, you can agree to a certain number of mediation sessions required before turning to a court for help resolving any issues.
- They both can address other miscellaneous issues, such as pet ownership.
Other optional clauses that may be less common in agreements may include pet ownership, engagement ring ownership, sunset clauses, infidelity clauses (in some states), social media clauses, and more.
- They both require some level of financial disclosure.
This is dictated by state laws, so the financial disclosure requirement may vary slightly from state to state. However, generally, both prenups and postnups require some level of financial disclosure between spouses. For example, each spouse needs to share with the other spouse what assets, businesses, debt, income, and inheritances they own.
- They both require certain formalities to be valid.
Again, this is dictated by state, but there are certain formalities required to create a valid and enforceable prenup and postnup. For example, virtually all states require these agreements to be in writing and signed.
Differences between prenups and postnups
The main difference between prenups and postnups is the timing of their creation. Prenups are established before the wedding day, while postnups are created after the wedding day. Here all of the differences between them:
- Prenups are made before the wedding and postnups are made after the wedding.
A prenup is only valid if executed before getting married. If you execute an agreement after the wedding day, it’s no longer a prenup–it’s a postnup. Postnups are executed after you’ve already been married. You cannot create a postnup before you get married (hence the term “post” nuptials).
- Postnups tend to face greater scrutiny than prenups by courts.
Postnups are a relatively newer marital agreement that often faces greater scrutiny from courts. In fact, some states won’t enforce postnups at all. They typically face greater scrutiny because they’re a newer concept and they stir up more questions. For example, they’re drawn up after the marriage has begun, which can make courts wonder about the timing and motivation behind it. Plus, if a couple is going through a rough patch or facing conflicts, signing a postnup might seem like one spouse is getting the short end of the stick. Courts tend to take a closer look at postnups to make sure both partners agreed to it freely and knew exactly what they were getting into.
- Postnups sometimes require legal representation.
In some states, postnups will not be enforced without having legal representation for both parties. This means a lawyer explained the rights each party was giving up, advised them, and signed off on the agreement.
- Postnups require consideration.
Additionally, there needs to be “consideration” from both parties. “Consideration” is a legal term that means two people to a contract must agree to give something up in exchange for something else. Prenups do not require consideration. Postnup consideration might involve a mutual waiver of property rights, where each party agrees to forego certain property entitlements they would otherwise have.
Who should get a prenup vs. a postnup?
You may be wondering if one is better than the other for certain people. The answer is a prenup is typically the better option because it usually faces less scrutiny by a court, thereby being more likely to be legally binding. However there are certain situations which necessitate a postnup.
Let’s talk about some of those scenarios that you may warrant a postnup:
- If you ran out of time to get a prenup.
- If one person has a drastic change in finances, such as receiving an unexpected inheritance.
- If one person has a drastic change in life plans, such as becoming a stay-at-home parent who was previously the breadwinner.
- If the couple decided to go into business together which was not previously anticipated.
- For estate planning purposes (as a supplement to an estate plan, such as a trust or a will).
For most individuals, obtaining a prenuptial agreement is typically the preferred choice based on prenups being widely accepted, more so than postnups. However, if you ran out of time or certain circumstances arise, considering a postnup may be a good idea.
Common misconceptions
There are several misconceptions surrounding prenups and postnups that we want to address once and for all. One common misconception is that these agreements signify a lack of trust between partners. In reality, they can promote open communication and financial transparency. For instance, preparing for either agreement sparks deep conversation about so many different topics (you can see some of those topics here). Things like, “Will inheritances be considered separate property of the person who inherited it?” Or “What retirement goals do each of you have?” On top of that, financial disclosure is required for both postnups and prenups, so it creates a level of financial transparency between a couple. This helps foster trust in a relationship.
Another misconception is that prenups and postnups are only for the wealthy. Either of these agreements can benefit couples of all income levels by providing protecting to any assets they currently have or may have in the future. That’s right, you can protect assets that you don’t have yet, such as inheritances or future income.
Additionally, some believe that prenups and postnups increase the likelihood of divorce. However, our research suggests that these agreements can actually strengthen marriages by addressing potential conflicts in advance. In fact, according to a HelloPrenup study, about 84% of couples who got a prenup actually felt closer to their partner than before.
The bottom line
In conclusion, prenuptial and postnuptial agreements are valuable tools for protecting assets and clarifying financial responsibilities in marriages. While they share similar purposes, they differ in some ways, such as timing and execution. By carefully considering the factors discussed and seeking legal guidance where necessary, couples can create agreements that meet their individual needs and promote marital harmony.
Frequently Asked Questions (FAQs) on Prenups vs. Postnups
If you still have unanswered questions, fear not! We’ve got all the details about prenups and postnups right here.
Q: Are prenuptial agreements enforceable in all states?
A: Yes, as long as you follow each state’s requirement for a valid and enforceable agreement.
Q: Are postnuptial agreements enforceable in all states?
A: No, not all states enforce postnups. Remember, this is a relatively new legal phenomenon compared to prenups, so it may take some time (if ever) to become enforceable in every state.
Q: Can a prenup be challenged in court?
A: Yes, a prenup AND a postnup can both be challenged in court. That doesn’t mean the challenge will be successful, but it is possible.
Q: What happens if there is a significant change in circumstances after signing a prenup?
A: You may get an amendment to your prenup but sometimes a lawyer may recommend you get a postnup instead.
Q: Are postnuptial agreements as effective as prenups?
A: It depends on what state you are in, but generally, no, postnups typically receive higher scrutiny than prenups.
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: [email protected]
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