You said ‘yes’ to the engagement ring and ‘yes’ to the dress. But maybe you said ‘no’ to the idea of a prenuptial agreement.
Don’t worry, all is not lost.
It’s perfectly normal to walk down the aisle, hoping and dreaming that your union will last a lifetime. And we hope it does! However, the bitter reality is that nearly half of all marriages end. In fact, the current divorce rate in America is a vast 42.6%, with 41% of first-time marriages, 60%-67% of second-time marriages, and 74% of third-time marriages ending in divorce.
With this in mind, an increasing number of people are turning to prenuptial agreements to protect their assets from the possibility of an unfavorable future. A remarkable increase of 500% over the last 20 years – that’s a lot of prenups, and quite rightly so!
But what happens if you are already married and change your mind about such a contract? Read on for everything you need to know about postnuptial agreements.
Can I get a prenup after marriage?
Unfortunately, no. A prenuptial agreement is a contract signed prior to marriage.
A postnuptial agreement, more commonly referred to as a postnup, is a contract drawn up and signed by a married couple. As the term suggests, post-nuptial means after marriage.
What is a postnup?
The purpose of a postnup is to protect certain marital assets and detail the division of finances and property in the event of a divorce. Much like a prenuptial agreement, the stipulations in a postnup can include provisions for the allocation of marital property and spousal support should the couple divorce or if one of the party dies.
When can I create a postnuptial agreement?
A postnup can be drawn up at any point during a marriage and can be useful for both new and established unions. A postnup can serve as a mechanism to help couples sort out any financial issues they have in their marriage.
Where can I create and enforce a postnuptial agreement?
A postnuptial agreement can be used in any of the following states and territories, but of course there are different thresholds of enforcement.
- District of Columbia
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
What are the main differences between a prenup and a postnup?
Whilst the bones of a prenup and a postnup sound similar, there are some key differences between the two contracts.
- One major distinction between a prenup and a postnup is when the contract is signed and when it comes into effect. A prenuptial agreement is signed before a couple gets married. This means that all the specifics you want covered in the marriage need to be set in stone before you reach the altar. The agreement is executed as soon as the couple is legally married.
Conversely, a postnuptial agreement is signed after a marriage takes place and caters for any needs that are realized or develop after the marriage takes place. Check out our blog When should I sign a prenup?
- Another key difference between a prenup and a postnup is how they are treated by the courts. The basics of contract law are the same for prenuptial agreements and postnups, but the former always have a better chance of enforcement than postnups. No matter how you draft a postnup, the courts will have the final say, and this can mean the presiding judge strikes the agreement if it does not meet strict state requirements for validity.
For this reason, prenups are more popular and more likely to be enforced the vast majority of states, with postnuptial agreements lagging behind in terms of acceptance, recognition, and ease of enforcement.
- A prenuptial agreement should outline details of all the assets a spouse had before the marriage. A postnup can take care of assets obtained following the union.
Why should you consider a postnup?
It is important to clarify that having a postnup or even discussing the idea of one is not a sign that the marriage is doomed. Much like a prenup, getting a postnup is not an indicator that you’re planning for a divorce. Instead, it is simply a way of organizing your assets and preparing your rights should the unthinkable happen in the future. Many states will not enforce a postnuptial agreement if it were created in contemplation of a divorce.
There may be a variety of reasons that a couple chooses not to get a prenuptial agreement before their wedding. Some of the major reasons couples decide to obtain a postnuptial agreement can include:
- To help save your marriage: Devising a postnuptial agreement as a precaution against divorce is usually done as a way of saving a marriage that is struggling due to financial disagreements or pressure. A postnuptial agreement can act as a lifeline that you and your spouse negotiate together, as part of a plan to remain married and work on your relationship. Many couples struggle with finances, and a postnup can help lay the groundwork for a productive discussion and plan.
- This is your second or third marriage: One reason for obtaining a postnuptial agreement is if this is your second or third marriage and you have children from a previous union or relationship. A postnup can protect your assets and ensure that your property is allocated fairly to your offspring in the event of a divorce or separation.
- To safeguard emotionally valuable or sentimental belongings: A postnuptial agreement can also protect important, emotionally laden, and invaluable heirlooms. A postnup contract could ensure the item(s) remain yours in the event of a divorce or are passed on to your children, or direct descendants if you die.
- A change in income or circumstances: Another pivotal reason for a postnup is a change in the family setup. For example, if one spouse decides to resign and stay home to raise children then this will invariably have an impact on the financial issues within the family. A postnup can be a way for couples whose financial circumstances are dramatically changing to come to an agreement that works for their family.
- Joint ventures or enterprises: A postnup can be invaluable if a couple starts a joint business enterprise or endeavor after marriage. The contract can help make their positions clear in the event of divorce.
- Business and relationships: Similarly, a postnuptial agreement can help couples who run businesses together to ensure their personal life doesn’t affect their professional life and vice versa.
Other reasons for taking out a postnuptial agreement can include tax planning, relocation, wealth planning, and terminal illness. Read about what to do if you run into issues negotiating in our blog about what to do if your fiance doesn’t want a prenup.
What provisions can a postnuptial agreement contain?
Postnuptial agreements ordinarily include the following provisions:
- Detailing the assignment of marital property after the death of a spouse. Such agreements can include the surviving party waiving their statutory inheritance rights.
- Arrangements relating to the division of assets acquired during the marriage. This includes any real estate or property bought during the union.
- Provisions relating to a spouse’s rights regarding property and assets acquired before the marriage.
- Any terms regarding alimony and spousal support.
- The division of any shared assets during the marriage, in the event of a divorce
- but…a postnuptial agreement should generally not be made in contemplation of a divorce! Some states explicitly prohibit this.
Although it is not a requirement in all states, it is worthwhile for both spouses to be represented by independent legal representation and for the signatures to be witnessed by a notary. Read our blog about relationship advice on marriage and kids.
What cannot be included in a postnuptial agreement?
Much like a premarital contract, provisions relating to child custody, child support, mandates attempting to regulate a spouse’s behavior or control a relationship are not enforceable and can invalidate the agreement.
What are the legal requirements for a postnup?
Much like prenuptial agreements, the laws surrounding postnups vary by state. However, there are 5 main elements that must be met to make the contract enforceable.
- The postnuptial agreement must be in writing. Oral arrangements are not enforceable in this instance.
- The contract must be voluntary and not coerced or compelled in any way.
- There must be a full disclosure of assets at the time of execution.
- The agreement must be conscionable and devoid of unfair or ludicrous provisions.
- The contract must be signed by both parties and notarized.
- Both parties should be represented by attorneys. Postnups are still in their beginning phase of existence, and so each party having an attorney greatly increases the liklihood that the agreement will be enforced in the future if the need arises.
The pros of a postnuptial agreement
Many times, couples marry without a prenuptial agreement and decide later that they would be more comfortable a postnup. These types of legal contracts can supersede state law that would ordinarily dictate how assets and property would be distributed in the event of a divorce. Of course, a prenup is always preferable to a postnup in that prenups are more readily enforced by courts.
- Protect your financial status
In some states in America, without a pre or a postnup you and your spouse legally have to share assets, property, and debts in a way that doesn’t feel fair to you. A court can enforceable these state laws despite whoever’s name is on any titles, deeds, or registration forms. If you have brought more into a marriage than your spouse, this could result in a monumental financial deficit for you if you divorce or separate in the future.
- Protect your children’s rights
A postnuptial contract can help protect the financial rights of your children. In lieu of a postnup, your spouse could receive the portion of inheritance intended for your offspring.
- Outline your spousal support provisions
As per the Uniform Premarital Agreement Act of 1983, you could use a prenuptial agreement as a basis for determining spousal support. This is the same for a postnuptial agreement. However, this will still be subject to the judge’s approval if divorce occurs.
- Reduce stress and bolster confidence
Couples may shy away from the idea of a pre or postnup because they don’t want to dampen the romance of marriage or mar the relationship by talk of divorce. But these types of contracts are hugely practical and can actually help reduce stress and reinforce certainty in your future security.
- Streamline a potential divorce
Whilst we will always recommend a prenuptial agreement for the ease of enforcement, having a postnup will still facilitate the divorce process through predetermined negotiations, reduce possible costs, and circumvent protracted litigation compared to having no agreement at all.
The cons of a postnuptial agreement
- They can breed overtones of doubt
Opting for a postnuptial agreement can bring about overtones of doubt and uncertainty in your marriage, implying that you don’t really believe the union will last forever. By creating one after walking down the aisle, especially in the face of infidelity, it can send the message that you feel your marriage won’t last the test of time.
- They can impose a change of lifestyle
Even though a postnuptial agreement can’t detail spousal or child support, it can influence the division of assets, and therefore signing a postnup can mean a change of lifestyle in the future.
- They are not entirely enforceable
Even if your postnup seems watertight, if you take the agreement to court it will still be subject to the judge’s opinion. The presiding judge will evaluate the validity, fairness, and enforceability of the document. This can depend on state law and presidence for enforcing these types of agreements.
- Can a postnup open a can of worms?
The act of discussing a divorce before marriage can sound like a stress-inducing exercise. Therefore, a couple may favor the notion of a postnup simply because they would rather avoid any difficult discussions about the division of property before their big joyous day.
However, postnuptial agreement discussions aren’t necessarily any easier; in fact, in most instances can be increasingly more complicated. So, they can still rock the boat and put the kibosh on a newlywed routine.
- Legal issues
When signing a postnup, it is important to understand that you will be relinquishing some of your rights by doing so. For example, if you are in a community property state where assets are generally shared on an equal basis, you may decrease your divorce settlement by agreeing to a postnup.
Before any couple commits to a lifelong union, there is a lot to be considered and decided upon. Both a prenup and a postnup are ideal methods for settling potential marital issues and ironing out possible future problems. What are three things you should talk about as soon as you get engaged?
Whilst a postnup can provide some level of posthumous protection for your property, as already discussed, they are less widely accepted and enforceable in their entirety than prenups. Therefore, we recommend always opting for a prenuptial contract where possible.
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