Facing the decision between a prenup and a postnuptial agreement? It’s a common question, and for most couples, the answer lies in the power of the prenup. Why? Prenups tend to hold more weight legally and offer a broader scope for outlining financial expectations. They’re generally viewed more favorably by courts.
However, life throws curveballs, and sometimes a postnuptial agreement might be the better fit. Perhaps time constraints prevented a prenup, or maybe significant financial changes occurred after the wedding.
Let’s explore the key distinctions between prenups and postnups to help you determine the best path for your unique circumstances.
The differences between prenups and postnups
Let’s first discuss the differences between prenups and postnups. The main difference is the timing at which you can get one. You can only get a prenup before the wedding. You can only get a postnup after the wedding. Another key difference is the legal requirements and restrictions. Postnups tend to have more legal requirements and restrictions surrounding what goes on. For example, in California, you cannot put spousal support in your postnup, but you can put it in your prenup. (Cal. Fam. Code § 1620).
Some other differences between prenups and postnups include:
- Postnups are sometimes harder to enforce than prenups
- People tend to enter prenups and postnups for different reasons
- Postnups tend to be much more specific, addressing specific properties, whereas prenups tend to be more general, addressing general future property acquired
- Prenups are much more popular than postnups
- All states enforce prenups, but there are some states that do not enforce postnups
However, there are a lot of similarities between the two agreements as well. Let’s discuss.
The similarities between prenups and postnups
While prenups and postnups have several differences, they still share many legal similarities. Both are classified as marital contracts, subject to family court jurisdiction, and often evaluated under the same legal standards. Essentially, some states treat postnups as prenups created after the wedding, allowing for similar content and similar legal standards to apply. Ultimately, both agreements provide clarity and security by defining property ownership and financial responsibilities, whether established before or during the marriage.
The dangers of choosing a postnup over a prenup
We won’t sugar coat it–postnups tend to be legally “shakier” than prenups because they are a relatively newer legal concept. Most states also apply a stricter standard to postnups when evaluating their enforceability, which can lead to overturning postnups more frequently than prenups. Why? Because postnups are historically created at a vulnerable time for couples. Maybe they experienced infidelity or some other marital issues, and courts fear that postnups are executed when one spouse is taking advantage of the other. And given the fact that couples are not at arm’s length of negotiating with eachother like two businesses would be, it can make for an unfair agreement.
The bottom line is that postnups can be harder to enforce than prenups. If you have a choice, getting a prenup is likely the best option for you, but always speak with a lawyer in your state.
Real postnuptial agreement case
Let’s use a real case to demonstrate. In In re Marriage of Haines, 33 Cal.App.4th 277 (Cal. Ct. App 1995), a California appeals court highlighted the importance of fairness and transparency in agreements between spouses. The case involved a wife who transferred her ownership in the family home to her husband in exchange for him co-signing a car loan. This occurred during significant marital turmoil. Later, during their divorce, the husband claimed full ownership of the house.
The court overturned the initial ruling that favored the husband, emphasizing the “confidential relationship” between spouses and the need for transactions to be free from undue influence of spouses. Because the husband gained a significant advantage in the deal, the court placed the burden on him to prove the wife fully understood the implications of the transfer and acted freely. When he failed to do so, the court voided the transfer, recognizing the wife owned her original interest in the home.
Bottom line? This case demonstrates that California courts (and many other state courts) prioritize protecting spouses from unfair agreements. When one spouse benefits significantly from a transaction, they must demonstrate that the agreement was fair and voluntary.
Why would someone choose a postnup over a prenup?
Now that you understand the differences and similarities between prenups and postnups, let’s discuss why someone might choose a postnup over a prenup.
Important consideration: Most attorneys, in most states, and in most situations would recommend you get a prenup over a postnup if it is possible, given that they are generally more enforceable in most states.
With that said, here are the situations where someone might choose a postnup over a prenup:
- Getting a prenup would somehow not be feasible or enforceable, so getting a postnup is a better option.
- Some people believe getting a postnup would be easier to negotiate (whether or not it’s actually true) because they’ve already been married and will have a better understanding of the finances.
- They missed their chance to get a prenup and now want to make sure they get something in writing, even if it is a postnup.
- The couple experienced infidelity or marital turbulence that prompted them to want a postnup when previously they did not want a prenup.
- Financial circumstances drastically changed, such as a lottery win or unexpected inheritance, can prompt couples who initially decided against a prenup to seek a postnup.
- Lifestyle circumstances drastically changed, such as a disability, death, additional children that weren’t expected, or other life things, can prompt couples to seek a postnup.
The bottom line is that getting a postnup can be riskier, so if you have a choice between a prenup and a postnup, you should most likely choose the prenup route. (Please reach out to a lawyer in your state if you’re unsure!).
The bottom line on postnups vs. prenups
While both prenups and postnups are valuable tools for clarifying financial expectations within a marriage, prenups generally hold greater legal weight and enforceability. If your circumstances allow, a prenup agreement is often the better option. However, life’s unpredictable twists and turns may necessitate a postnup agreement to address evolving needs and protect individual interests. Ultimately, the best path forward depends on your unique circumstances and goals. Talk to an attorney to make sure your chosen agreement aligns with your situation.
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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