Prenups, postnups – what do all of these terms mean, and why should you be thinking about them if you’re planning on getting married in the near future? Don’t panic (after all, wedding planning during a pandemic is stressful and panic-inducing enough) – we have all of the answers to all of your questions about prenups, postnups, and which contract might be right for you.
If you’re familiar with the concept of a prenup, more formally known as a prenuptial agreement, you already know quite a bit about the workings of a postnup (or, postnuptial agreement), generally speaking. Spoiler alert – Although these documents are executed at different times (hence the “pre” and “post”) – they can contain much of the same content.
What’s the rudimentary difference between a prenup and a postnup?
Let’s start with the basics and delve into the definition of a prenup. A prenup is a contract between yourself and your future spouse (keyword being future, of course). For it to qualify as a prenup, it must be drafted, finalized and signed before the date of your legal wedding. If you’ll allow us to give a brief etymology lesson, the term “prenuptials” speaks exactly to this. The word itself is composed of the prefix “pre-”, meaning “before”, and the root word “nuptials”, another word for wedding vows. So, the word literally means “before a wedding.” Between prenups and postnups, prenups are by far the much more popular option, at the moment at least. We’ll get into why that is in just a minute.
Of course, if you know a thing or two about word stems, you’ve likely already put together the definition of a postnup. Postnups (note the “post-” prefix meaning “after”) are contracts made between yourself and your spouse after you’ve already been married (back to that root word, “nuptials”). As long as you aren’t planning for a divorce, you can have a postnup drafted literally anytime during the course of your marriage – whether it’s the day after your wedding or 25 years down the line. The long and short of it is – prenups are created and finalized before a wedding/during an engagement, while postnups are created after a couple has been legally married.
Is one option better than the other?
While it’s tough for us to say exactly what will work best for your particular marriage, it is generally safe to say that a prenup can hold many advantages over a postnup, if you have the option. Why? The main concern is that postnups are not upheld by many states, while prenups are much more widely accepted, as they have been around longer. Frankly, the lack of use and enforcement of postnups is still largely due to the fact that postnups have not been around as long as prenups. In the grand scheme of marital contracts, they are relatively new- and much newer than prenups! After all, it was not very long ago that prenups were not recognized in most states. While we can hope that postnups will soon catch on in popularity as prenups have, for now it is critical for those obtaining postnups to do their research, and ensure that the state they’re in will legally acknowledge a postnup. Nobody wants to pay significant negotiation and legal fees only to discover their contract is not enforceable.
So, while prenups are more likely to be upheld by a court of law, what other benefits do they hold in comparison to postnups? Generally speaking, because a prenup is executed prior to a marriage, it is a proactive approach that grants you the opportunity to set your marriage up for financial success and clarity- and get off on the right foot. When drafting a prenup, you and your future spouse get to mitigate future potential financial risks and mishaps but agreeing to terms surrounding your assets, income, and debt. Whether you’re protecting your spouse from having to acquire your student loan debt, safeguarding your own retirement accounts, or agreeing to alimony payments on your terms (as opposed to the terms decided by state law or a divorce court), a prenup can act as life insurance for your marriage – while neither of you hope for your marriage to end in divorce, you can each sleep at night knowing that you have the best chance of being protected in case it does.
Yes, proactivity will always hold benefits. However, if you missed the boat on getting a prenup for whatever reason (we don’t judge), there’s also truth to the adage “better late than never!” That’s where a postnup might hold its own. Postnups can be ideal for married couples who weren’t aware of or decided against a prenup while they were engaged. Remember though, a prenup or postnup doesn’t spell out imminent divorce. Quite the contrary, a postnup will almost definitely be invalidated by a judge during divorce court if it was thought to be “divorce planning.” Hypothetically, if a postnup was finalized not long before a married couple filed for divorce, the judge would most likely invalidate it as divorce planning. The same goes for a separated couple who would attempt to get a postnup. Because they are already separated and considered one step closer to potential divorce, their postnup would almost assuredly be scrapped in a court of law. Courts usually consider this type of thing to be “divorce planning” and do not look upon it favorably.
Sure, hindsight is 20/20, but with that in mind, it’s also worth noting that postnups cannot act retrospectively. Without a prenup in place, so many assets that were once individual may become marital property upon marriage. While a prenup may work to prevent certain assets from becoming marital by identifying them as “separate property,” from ever becoming the case, a postnup cannot “undo” marital assets. Rather, a postnup can separate out assets or specify others as marital.
So…what can a postnup do?
Protect Certain Assets
Like we mentioned, a postnup cannot prevent things from being marital property, if you are already married. But, a postnup can specify which assets should belong to whom in the event of a divorce.
Safeguard Inheritance or Gifts
Have an elderly relative whom you know has put you in their will? Maybe you’ve been promised a notable gift for a certain birthday. Whatever the circumstance, if you are expecting a notable inheritance or gift, a postnup can ensure that these assets remain separate property, and do not become party of the martial estate when received, and instead remain yours in the case of a divorce.
Protect Your Business
Postnups don’t only have to protect your personal financial life. If you’re a small business owner, co-founder, or hold notable shares in your company (perhaps at a start-up), a postnup can set you up for success. By claiming ownership of your company in a postnup and agreeing to remove those shares or that equity from being considered party of your shared pool of marital assets, you can then protect that equity and possibly also separate out the income earned through the business during the course of the marriage. Of course, because postnups are much more vulnerable than prenups to intense scrutiny within the courts, it is important that you speak to an attorney in your state to determine the best approach to take.
Remember – a prenup can do all of these things and much more.
Anything a postnup can do, a prenup can do better! Sort of. If you have yet to say “I do” and you have a least a few months before exchanging nuptials (remember, the sooner that your prenup is finalized before your wedding day, the fewer issues you will have) it’s not too late to get a prenup.
If you and your fiance decide to spring for a prenup, you don’t have to rely on the traditional costly methods and legal negotiations to obtain one. Legally sound prenups that are tailored to the laws of your state are what we specialize in, and the entire process is done completely online – ideal for the potential quarantines still to come. Our platform, HelloPrenup, features processes like Issue Identification and Discussion & Issue Resolution, ensuring the contract drafting is a collaborative process that minimizes discomfort. 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.