POV: You’re headed to your attorney’s office to get a postnup drawn up with your spouse. You need a list of questions to ask your attorney, and you’re not sure where to start or what to ask. Well, you’ve come to the right place. Knowing the right questions can make all the difference in an efficient and effective meeting with an attorney. Not to mention, knowing exactly what to ask can save you time, ultimately saving you money (Attorneys charge by the hour). So, without further ado, let’s discuss all the questions you should ask your attorney about postnups.
What is a postnup?
First, let’s talk about what a postnup is. A postnup is a contract signed between two spouses who are already married and want to clarify certain financial matters. Most postnups discuss who owns what property during the marriage and in the event of a divorce. Postnups are enforceable in most states, but there are a handful of states that do not enforce them, so make sure to check with your state. In most states, postnups require signatures, notarization, financial disclosure, consideration for entering into the agreement, provisions made out for both people and no fraud/duress/coercion can be involved in the making of the agreement.
Questions to ask your attorney about postnups
So, let’s get into it. Here are a bunch of questions you can ask your attorney and why they’re important.
“What is your fee structure, and how much can I expect to pay?”
Most attorneys charge by the hour for a postnup, but once in a while, you can find someone who will do it for a flat rate. In addition, most attorneys will be able to give you a ballpark figure on how much you can expect to pay. You may also want to ask what their retainer is.
“What is the postnup process from start to finish?”
Each state has different requirements, some states require witnesses, and other states require heightened financial disclosure. If there are unique requirements for postnups in your state, you’ll want to know about it. And you’ll want to get a feel for the postnup process in general so you can go into it with confidence.
“What level of consideration do postnups require in my state?”
A postnuptial agreement usually requires something of value, called “consideration,” to be exchanged by both parties. This means each spouse must receive a benefit in exchange for signing the agreement. Some states require this, and others don’t. It is important to understand this to make sure the postnup terms you had in mind are enforceable in your state.
“What financial information do we need to disclose?”
Most postnups require financial disclosure, which is the sharing of financial information, including income, assets, debts, and future inheritances. Understanding how much and what information you need to provide to your spouse regarding finances is crucial!
“We want one spouse to maintain a piece of real estate as her separate property. Do we need to transfer title?”
If you’re looking to have one party maintain ownership of a piece of real estate, you will want to ask your attorney what to do about the title on the property. For example, let’s say John and Megan agree that Megan should retain sole ownership of the property. Do they need to change the property’s title to reflect this? The answer is likely yes, but it’s good to get this conversation flowing.
“I want to keep my future inheritance from my parents separate, what financial information do you need from me?”
Let’s say you are entering into a postnup to keep an incoming inheritance separate. You should ask your attorney what level of financial information you need to disclose to your spouse. For example, if you need to figure out exactly how much the inheritance is worth, you’ll want to ask your parents or whoever is giving you the inheritance about this.
“What are the elective share laws in my state and should we waive that?”
Spousal elective share right is available in some states which says the surviving spouse can take a portion of the deceased spouse’s state even if they were written out of the will. You can WAIVE this right in a postnup, so make sure to ask your attorney about this.
“What clauses can I include to protect my children from a previous relationship?”
If your goal is to protect your children from a previous relationship, make sure to let your attorney know so they can tell you about any available clauses you may be interested in.
“We have accounts for our children of the marriage, how should we address that in the postnup, if at all?”
You may have accounts for your children, such as savings accounts, trusts, or college funds. You’ll want to address how to treat these accounts in the event of divorce. Typically, as long as the accounts are in the child’s name, they should remain the child’s, but this issue may need to be addressed in the postnup.
“Can we amend our postnup?”
Understanding what the law in your state is regarding amending the postnup if things ever change is important. What is required? Do you need to come back to the attorney? Notarize? Witnesses? How does the process work?
“How do I enforce a postnup if we ever get divorced?”
While you hope never to need to know the answer to this question, it’s still important. Understanding the process for invoking the postnup is crucial to feeling comfortable in any scenario life throws your way.
“What happens to our postnup if one of us dies?”
Understanding what happens to the terms of the postnup if one party dies during the marriage while the postnup is still in effect is another important question. Do you want to include terms in the postnup that expressly addresses this?
The bottom line on questions to ask your attorney about postnups
At the end of the day, you need to feel knowledgeable and comfortable with the agreement you’re signing, so make sure you think through all of the questions that may be unique to your situation so you can feel confident. From the fee structure to what happens if you die, there are tons of questions to be asked. And don’t forget to jot those down so you don’t forget any in the heat of the moment! 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
0 Comments