Congrats! If you’re reading this because you’ve been asking yourself this question, you did it – you’ve officially tied the knot with your significant other, and have strapped in for a lifetime of love and devotion. Now that the big day has passed and the jitters have worn down – have you found yourself wondering if it’s now too late to get a prenuptial agreement (prenup)?
If you have had these thoughts – don’t worry, this doesn’t make you a bad person, or allude that you’re imminently doomed for divorce. In fact, quite the opposite. Prenups encourage active discussion about finances early on in a marriage. While yes, this topic can feel uncomfortable to talk about at first, it’s actually really healthy for couples to regularly discuss money. What we may not realize until we really think about it, is that money tends to be inherently intertwined with negative human emotions – whether it’s greed, embarrassment, shame, or jealousy. These sorts of feelings make us shy away from the topic, perhaps especially in romantic relationships. But it’s important to remember that when two people come together in a marriage, each comes in with their own values and habits surrounding money. Just like it’s important to learn your significant other’s daily habits in order to have a compatible life together, it’s going to be essential to learn their money habits, as well. After all, money is a part of everyday life!
So, back to the main question – is it too late to get a prenup once you’ve been married? Well, the answer is a bit complicated. On a technicality, yes, it is too late to get a prenup – the word itself is composed of the prefix “pre-”, meaning “before”, and “nuptials”, another word for wedding. So, the word literally means “before a wedding.” That being said, there are also contracts called postnuptial agreements (postnups). These are basically the best next thing to a prenup – contracts that settle a couple’s assets in the case that they separate – but in this case, the contract is drafted after the wedding. Do they sound too good to be true? Well – they sort of are.
The Issue with Postnuptial Agreements
While we want to be clear that we are not totally ruling them out, it’s worth mentioning that postnups are not upheld in many states. That doesn’t mean that all hope is lost, though! It wasn’t very long ago that prenups were also not recognized in a majority of states. As time passed, prenup contracts became less taboo, and they became more widely recognized and accepted in courts. We can hope to predict that the same will happen for postnups in due time. But right now, if you’re considering getting a postnuptial contract written, it’s crucial to do your research into how your state will view a postnup. The last thing that you want to do is put time, money, and effort into getting a postnup written that will not be enforceable when it is most needed.
Once you’ve figured out whether it’s worthwhile to get a postnup drafted based on your state’s laws, it’s best to analyze what a postnup can and can’t do, and how they might differ from prenups. Overall, because a couple getting a postnup is already married – their individual assets have likely, at least in part (depending on your state’s laws) become part of their marital estate. While prenups provide an opportunity for individuals to prevent their assets from becoming joint marital property, a postnup does not. Therefore, the potential clauses that may be included in postnups are much more limited in scope compared to prenups.
Postnups Cannot Determine Child Custody
Just like prenups, postnups do not have the power to determine which spouse gets custody of a child (or children) in the case of divorce or separation. This is something that will always be left up to a court of law, as the child’s wellbeing and best interest at the time of the divorce or separation needs to be considered.
Postnups Cannot Work Retroactively
As the saying goes, “What’s done is done.” That manta of acceptance applies to pretty much all aspects of life, including postnups. What we’re saying is, postnups cannot work to undo any merging of estates, transfers of money, etc. that took place after the marriage but before the postnup was instated. Instead, a postnup can help you plan a financially strategic future.
Who Should Consider A Postnup?
We say anyone who missed out on the opportunity to get a prenup (but of course, we’re a bit biased). In all seriousness though, there are several situations in which a couple may want to consider a postnup, and the protection offered by these documents has universal benefit. Firstly, if one or both individuals came into a marriage with significant assets, and predict a continued accumulation of said assets, a postnup will help delineate who’s property belongs to whom.
Though it’s unpleasant to consider our own mortality, individuals with children from a previous marriage or relationship will want to think ahead (we do it with life insurance, after all). If left unspecified in a valid prenup, postnup, or Last Will and Testament, many states will automatically give part of an individual’s estate to their spouse in the instance of death. As many individuals may prefer that their estate go towards their children, a postnup can be helpful in pointing to a trust document that should control.
Along the same grain as ensuring assets are left to children, postnups can also be beneficial if you yourself are set to receive an inheritance from a loved one. If you know that you are going to be bequeathed a notable sum of money, property, or even an expensive item, a postnup can help ensure that these gifted assets do not become marital property. Instead, they will be designated to you and you alone in the case of a split.
Finally, if you’re a small business owner, co-founder, or hold notable shares in your company, a postnup can set you up for success should your marriage go south. A postnup can protect income earned during the course of the marriage. So, this provision ensures that your spouse is unable to receive earnings accumulated from, or any percentage of, your business. For this reason, any successful business owner may want to consider a postnup.
For those already married – it may be worth doing your due diligence and looking into the prospects of getting a postnup drafted. Because these documents can be deemed unenforceable by state courts so easily, we suggest avoiding “fill out a form” sites that promise a valid postnup. Most likely, you will end up being disappointed by the lack of enforceability of these postnups. Keep in mind, though no legal document is 100% guaranteed enforceable, it’s in your best interest to create a contract that is more likely to be enforced. Though it may end up costing you more money, when going about drafting a postup, it’s smartest to consult with an attorney familiar with marriage and divorce laws in your state.
While marriage may indeed make it too late to get a prenup, postnups, where valid, can be an effective alternative- the next best thing. If you’re a bride or groom to-be and are considering a prenup, don’t wait! As we’ve spoken about many, many times, prenups allow for a lot more flexibility in deciding which assets remain separate, and which become marital property. If your ideology is that it will be easier to discuss money once you’re settled into your marital routine – we recommend ripping the bandaid off now- before you get married. After all, the sooner you get comfortable discussing finances in your marriage, the better!
Additionally, if you opt for a prenup prior to marriage rather than waiting to get a postnup after marriage, you can enjoy the benefit of having a valid agreement / prenup contract made completely online through our digital platform, HelloPrenup. Our platform was founded by family law attorneys, and features advanced steps like Issue Identification as well as Discussion & Issue Resolution to ensure communication is at the forefront of the prenup drafting process. HelloPrenup is designed to be a collaborative process, and was created to help reduce both the uncomfortable process of negotiations, and the costly expense traditionally associated with prenups. After all, collaboration is a vital component to a happy marriage, and by creating a prenuptial agreement together by discussing the terms as a couple – rather than feeling as if you’re going head-to-head in a legal battle with your future spouse -HelloPrenup allows you and your fiancé to work on your prenup as a team.
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