Thinking about getting a prenup or a postnup but not sure which one is right for you? Trying to understand the difference between a prenuptial agreement and a postnuptial agreement in California? You’re in the right place! For starters, the key difference between the two agreements is the timing in which a couple gets the agreement. There are also differences in the legal requirements and what contents can go into the agreements. Finally, the reasons couples enter into each agreement are typically different (but not always). Let’s discuss everything you need to know about the differences between prenups and postnups in California.
Why prenups and postnups matter
First things first–why do people get prenups or postnups, and why are they important? Well, they both help couples set expectations with one another, clarify property ownership and division, and ensure both spouses are on the same page during the marriage. In addition, according to a HelloPrenup survey, 83% of couples felt closer after executing a prenup. This shows that these types of agreements help align couples on financial topics, which ultimately creates a stronger foundation for the relationship and a level of trust. And while most people assume their marriages will last forever, that’s simply not the case. Marital agreements such as prenups and postnups help both parties protect their financial futures in any scenario.
Difference #1: The timing of prenups and postnups
The first and most important difference between prenups and postnups is when they are executed (meaning, when they are signed). Prenups are signed before the wedding day, while postnups are signed after the wedding day. And postnups may be signed at any point post-wedding, whether it’s one day after the wedding or 20 years after the wedding. Prenups, on the other hand, should be signed prior to the wedding but relatively imminent to the wedding (we recommend starting the process three to six months before the big day). If you do it too soon before the wedding, the financial disclosure could become incorrect (i.e., your finances could change, and you’d need to re-do financial disclosure). And if you do it too close to the wedding day, you could also be in trouble. In California, there’s something known as the “7-day rule,” which legally requires you to get your prenup signed at least 7 days prior to the wedding day. You need to strike a good balance!
Long story short. Prenups = before the wedding. Postnups = after the wedding.
Difference #2: The legalities of prenups versus postnups
In California (unlike some other states), there are different requirements for prenups than there are for postnups. For example, prenups must abide by the 7-day rule, which means the fiances must contemplate the agreement for seven calendar days before signing it. There’s no such rule for postnups in California.
In addition, a court scrutinizes a postnup more heavily than a prenup. What does that mean? This means that a court will take a much closer look at a postnup when analyzing whether it’s valid and enforceable than a prenup. And that may lead to more postnups overturned, though there’s no data on this at the moment.
Difference #3: The purpose of a prenup versus a postnup
The reason a couple enters into a prenup versus a postnup is usually fairly different. For instance, people tend to enter prenups to lay out their finances and protect themselves in the event of a divorce, but things in the relationship are usually on good terms (Heck, they’re weeks away from the wedding; we hope they are!). On the other hand, postnups may be entered into when the couple is experiencing marital issues, such as infidelity or addiction problems. In addition, postnups tend to be created when there’s a significant shift in finances or lifestyle for the couple, such as starting a business. Though every case is different, of course!
Difference #4: The topics you can cover with a prenup versus a postnup
In California, you cannot talk about spousal support in your postnuptial agreement. On the other hand, with a prenuptial agreement, you can, as long as you have legal representation ((Cal. Fam. Code § 1612(c)). As you can see, California law takes spousal support very seriously and doesn’t allow spouses to make changes to the default law easily. Why? Spousal support is financial support from one spouse to the other in the event of a divorce. Waiving or limiting this right can put people in a very disadvantaged position and it can be hard for people to have this foresight when signing an agreement.
Difference #5: The language within a prenup versus a postnup
The language that is included within a prenup and postnup is going to look slightly different, although similar. For example, when you live in California, you live under the default laws of “community property,” which essentially means the second you get married, you start accumulating community property, which is ultimately split 50-50 (unless you have a prenup, of course). Let’s say you get married, and for the first six months of your marriage, you deposit $10,000 into a checking account. Regardless of who deposited that money, it is generally considered community property, subject to a 50-50 split. So, as you can imagine, the language within a postnup will have to address what happens to that accumulated community property that has built up over the course of the marriage. On the other hand, prenups don’t have that concern, as the marriage hasn’t started yet.
Difference #6: The consideration required for prenups versus postnups
“Consideration” is a legal term used to describe an exchange of sorts between people entering an agreement. Consideration is what each party is “getting” out of the contract. For a prenup, sufficient consideration is entering the marriage. Simply agreeing to get married for both parties is enough to satisfy that each person “got” something out of the contract.
On the other hand, in California, more than just getting married/staying in the marriage is required for a postnup. Each party must give up a right or receive something in exchange for something else. For example, sufficient postnup consideration in California might be where one party waives their right to their spouse’s business, and in exchange, the other spouse receives a lump sum payment of $100,000 upon divorce. Obviously, the circumstances of each individual couple will come into play, and while this scenario might make sense for one couple, it might not for another.
Difference #7: Postnups tend to be more specific
Given that a postnup is generally entered into after marital assets (i.e., community property) have been accumulated, there are more specific assets to address. Meanwhile, with a prenup, the couple doesn’t have any marital assets yet–only separate property or separate property jointly held. So, with a postnup, couples tend to get really specific about the issues they’re concerned with. For example, maybe one party started a business while married and simply wants to address business interests. Or maybe one spouse learns that they will soon receive a million-dollar inheritance and wants to make sure that’s separate. On the other hand, a prenup simply lays out a framework for future assets: “keep all inheritances separate” or “keep all future businesses separate” since these things don’t exist yet.
Difference #8: Prenups tend to be more enforceable than postnups
While both agreements are valid and “legal” in the state of California, postnups tend to be a bit tougher to enforce. Why? Because they have different legal standards that apply to them as opposed to prenups due to the nature of the agreement. Postnups are entered into by two people who have a fiduciary duty to one another, which is a legal term for “they owe each other more than just a regular set of people.” Married couples are negotiating in a unique and very personal position, which can get messy if both parties don’t provide the utmost good faith.
The similarities between a prenuptial agreement and a postnuptial agreement
Now that we’ve covered the eight most common differences between prenups and postnups in California, let’s turn to what is similar about them. Here are a few of the similarities between the two contracts:
- Both are types of marital contracts dealt with in family court
- Both are required to be in writing
- Both are required to be signed
- Both should be notarized by a Notary Public
- Both must be entered into voluntarily (no duress, coercion, undue influence, etc.)
- Both must provide financial disclosure to the other partner (sharing of assets, debts, income, inheritances, etc.)
- Both agreements must be reasonably fair (though postnups tend to be scrutinized more, so the fairness aspect may come into play more so for a postnup than a prenup).
- No infidelity clauses or other lifestyle clauses–regardless of which agreement you’re entering into, a California court will not enforce these types of clauses
- They help couples align on certain financial matters, life goals, and expectations of one another
- They can help streamline divorce by having certain property matters already worked out ahead of time
As you can see, there are way more similarities than differences between postnups and prenups!
The bottom line on prenups vs. postnups in California
Well, there you have it, folks! Everything you need to know about the differences between prenups and postnups in the Golden State! There are eight major differences between prenups and postnups to be aware of (the timing, the legalities, the purpose, the topics, the contract language, the consideration, the specificity of the agreement, and the enforceability). On the other hand, we pointed out ten different similarities between the contracts. It appears that prenups and postnups have more in common than they have in differences!
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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