A “post-marriage prenup” is a misnomer. An agreement made post-wedding day is just called a “postnuptial agreement.” It’s no longer a pre-nuptial agreement, since the agreement is not made pre-wedding. (Pre-nuptial = pre-wedding… Post-nuptial = post-wedding). Okay, so you get the jist. If you’ve ever heard someone say “post-marriage prenup,” that just means they’re likely referring to a postnuptial agreement. So, without further ado, let’s get into all things postnups and what you need to know for your so-called “post-marriage prenup.”
Post-marriage prenup = postnuptial agreement
As we said above, a post-marriage prenup is an incorrect term…there’s no such thing as a post-marriage prenup since a prenup is a term for an agreement you get BEFORE the marriage, not post-marriage. A postnuptial agreement (a.k.a. postnup) is likely the term that is meant by “post-marriage prenup.” A postnup is a contract that spouses may enter into post-marriage or post-wedding. It’s very similar to a prenup in the things it may cover, such as property classification, property division, alimony, inheritances, businesses, etc. However, the main downfall of a postnup is its enforceability. It may not be quite as enforceable as a prenup, depending on your state laws. This is because postnups are treated with a higher level of scrutiny by courts, given the close relationship spouses have with each other when entering into an agreement. There’s a level of trust there that creates a different environment for negotiating than a regular contract or even a prenup (you’re just boyfriend-girlfriend at that point).
Postnuptial agreements vs. prenuptial agreements
A postnup and prenup are quite similar in many ways, but there are two main differences:
- The timing of a postnup and prenup is different: one you get before the wedding and one you get after the wedding.
- The scrutiny applied to a postnup vs a prenup by courts is usually different.
Understanding the distinction between prenups and postnups is important for several reasons. First, it determines which agreement is appropriate for your current relationship status (are you married yet or not?). Secondly, the legal strength of these agreements can vary. While both are very much enforceable in most states, some courts may scrutinize postnups more closely to ensure fairness, as they are created within the context of an existing marriage.
What are the requirements for a valid postnup?
So, how do you get one of these so-called post-marriage “prenups” (a.k.a., a postnup)? You’ll need to follow the laws laid out in your state regarding the requirements for a valid and enforceable postnup. Most states do not have a specific statute laying out the requirements for a postnup, as it is a relatively new legal concept. So, we turn to the caselaw in each state to understand what is required. Generally, these are the requirements for a postnup (in most states):
- The postnup must be in writing and signed by both parties
- The spouses must enter into the agreement voluntarily (no duress or coercion)
- The spouses must provide full financial disclosure to one another
- The agreement must be reasonably fair, which some states say means there must be at least one reasonable provision for each spouse
Note: There may be more requirements for a postnup in your specific state. For example, in Texas, there is specific language that you must include in your postnup for it to be considered enforceable. (Tex. Fam. Code § 4.205).
What can you put in a postnup?
Well, this again goes back to your state laws and what is acceptable. For example, California blatantly declined to uphold a postnup with an infidelity clause (Diosdado v. Diosdado, 97 Cal.App.4th 470 (Cal. Ct. App. 2002)), whereas a Maryland court upheld a postnup with an infidelity clause (Lloyd v. Niceta, 485 Md. 422, 301 A.3d 94 (2023)). However, the American Academy of Matrimonial Lawyers (AAML) surveyed its members and found the top three most common topics in a postnup were property division (90%), alimony (73%), and retirement accounts (45%).
Here are some of the topics couples may include in a postnup:
- Property division
- Alimony
- Retirement accounts
- Business interests
- Inheritances/gifts
- Marital residence terms
- Attorneys fees
- Taxes
- Infidelity clauses (only in certain states)
What are the misconceptions about postnups?
Some of the common misconceptions about postnups is that they are all made in contemplation of divorce. But that’s not true. Many folks simply missed the deadline to get a prenup, so opt for a postnup instead. In addition, postnups are meant for people who plan to stay married. If you are planning on divorce, you should draft a divorce settlement agreement instead.
Here are some other misconceptions about postnups:
- Myth: Postnups are only for wealthy couples. Fact: Anyone can get a postnup, and it can be beneficial for everyone.
- Myth: Postnups signal a lack of trust in the relationship. Fact: Postnups can be a way to show you care about your spouse by ensuring BOTH of you are protected in a way that you both feel comfortable with.
- Myth: Postnups are difficult and expensive to obtain. Fact: As long as there aren’t going to be a ton of lengthy negotiations, postnups can be generally quick and painless if you know what you want to get!
As you can see, postnups aren’t some out-of-reach document that is only for the ultra-rich couples that hate each other. Quite the opposite–postnups can benefit any couple and can help create a stronger foundation for your marriage.
A societal shift towards postnups
As the years go on, postnups are becoming more and more popular. In fact, according to an older survey (2015) done by the AAML, 50% of its members saw an increase in the number of requests for postnups by their clients. And that was about 10 years ago! Imagine how much it has grown since then.
People nowadays are much more open to the idea of a postnup than ever before due to shifting marital roles (more women working and sharing the financial load) and the change in attitudes towards divorce.
The bottom line on post-marriage “prenups”
Again, don’t be fooled: A “post-marriage prenup” is just a postnup, and this is a misnomer because you cannot get a prenup post-marriage (hence the term pre-nuptial). Postnups are contracts you get while married and are a way to sort out certain financial matters, such as property division, alimony, retirement accounts, and more. Postnups can also be a way to protect yourself and your spouse, get aligned on certain topics, and ultimately create a stronger foundation for your marriage by working out any issues and planning for the future. 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
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