Prenuptial and postnuptial agreements are marital agreements that both members of a couple can sign. These legal documents provide space for couples to specify terms regarding the division of assets and property in the event of a divorce.
Some couples choose to create a prenup or postnup because they want the valuable protection it provides. By signing, they take steps to protect their assets and other property just in case the marriage ends unexpectedly.
If you are contemplating marriage or are already married, it’s helpful to understand the differences between prenuptial and postnuptial agreements, as one of these documents might benefit you.
What is a prenuptial agreement?
A prenuptial agreement, sometimes called a premarital agreement, is a legal contract that a couple signs before marriage. These agreements typically lay out the terms of how property, finances, and marital assets would be divided in the event of a divorce or separation.
What is a postnuptial agreement?
Postnup agreements are similar to prenuptial agreements, but a key difference exists: They are for married couples. Like prenuptial agreements, postnuptial agreements typically address property division and finances in the event of a divorce or separation.
What are the differences between prenups and postnups?
The main difference between prenups and postnups has to do with timing. A prenuptial agreement is signed before the wedding, often with the purpose of safeguarding certain assets or property in mind. Examples include an inheritance, previously owned real estate, or a family business. A prenup can also outline how debts would be divided in divorce and establish rules for child custody or child support.
Unlike prenup agreements, which must be signed before marriage, postnup agreements are signed during the marriage. Postnups appeal to couples who may have acquired significant new assets or experienced changes in their finances since getting married. For example, a couple may decide to enter into a postnup if one spouse inherits a family heirloom and wants to make sure it stays in the family.
Why should I consider getting a prenuptial agreement?
Perhaps the most obvious benefit of a prenup is the financial protection it provides if the marriage ends. These are binding contracts that could potentially prevent an unfair or unwanted division of assets.
Why should I consider getting a postnuptial agreement?
One of the main reasons a person might consider getting a postnup is peace of mind. Like prenups, postnups are binding contracts. With a postnup in place, you know exactly how property division and the division of assets would go in the event of a divorce. This knowledge prevents conflicts and disagreements down the road, should a divorce settlement come to play.
FAQ about prenups and postnups
Is a postnup an agreement for divorce?
No. It is an agreement on how to divide items should your marriage end in divorce.
Can prenups be signed after marriage?
No. Prenups must be signed prior to a couple getting married.
Is it better to have a prenup or postnup?
It depends on your situation. It's always wise to protect yourself, so if you're already married and concerned about property or financial matters, a postnup would be for you. If you haven't gotten married yet, it might be a good idea to discuss a prenup with your fiance.
At Hello Divorce, we’ve helped many couples reach divorce settlements that satisfy both spouses. We understand the angst you may feel about keeping separate property separate. We have seen couples struggle over what to do with community property to the point of needing mediation and even litigation. And while nobody in a happy marriage wants to think about this possibility, the high divorce rate suggests that having these agreements in place “just in case” is a smart move.
Although we don’t prepare prenups at this time, we do provide legal review of prenups that have already been established. If you’re married and would like to create a postnuptial agreement with your spouse, we can provide this service for you at a flat, affordable rate. Click here to read about our postnuptial agreement service.
FAQs
What is a prenuptial agreement?
A prenup is a contract signed before marriage that defines how assets, debts, and support will be handled if the marriage ends. It helps couples set expectations and avoid future disputes.
What is a postnuptial agreement?
A postnup is signed after marriage and adjusts financial arrangements based on new circumstances, like career changes or inheritances.
Why would someone choose a postnup instead of a prenup?
Because situations and comfort levels change. Some couples don’t negotiate before the wedding, while others realize during marriage that a postnup could protect both partners.
Are prenups and postnups enforceable?
Yes, if fair, transparent, and voluntary. Courts may reject agreements that are coercive or one-sided.
What can they include?
Property division, spousal support, debts, and inheritance rights. Child custody and child support cannot be included.
Who should consider one?
Couples with significant assets, prior children, businesses, or fairness concerns. These agreements can safeguard both partners.
Step-by-Step: Choosing Between a Prenup and a Postnup
Identify your goals
Decide if the purpose is asset protection, financial stability, or debt clarity.
Decide on timing
Engaged? Choose a prenup. Already married? A postnup might be better.
Gather full financial disclosures
Both partners must share income, debts, and assets openly.
Consult professionals
Engage a family lawyer, and consider a financial advisor. Mediation may ease negotiations.
Negotiate and draft the agreement
Agree on division of property, spousal support, and inheritance rights.
Review and sign
Each spouse should review with their own lawyer and finalize with a notary or witness.
Revisit as life changes
Update the agreement for major life events like kids, businesses, or inheritance.
