Family Law

Understanding Prenuptial and Postnuptial Agreements

By Melissa Heinig, Attorney
Learn more about prenuptial and postnuptial agreements and how either could impact your future.

Planning a wedding is no easy task, but along with picking your flowers and venue, you should consider a prenuptial agreement. If you’ve already enjoyed your wedding and want to protect your assets if you divorce, a postnuptial agreement may be right for you.

What Is a Prenuptial Agreement?

A prenuptial agreement (or, prenup) is a legal contract that you and your soon-to-be-spouse create before you get married. Although no one wants to consider the possibility of a break up while embarking on a forever commitment, the truth is, nearly 50% of marriages end with at least one spouse filing for divorce.

The purpose of a prenup is to ensure that you and your spouse-to-be enter the marriage with a clear understanding of each other’s finances and debts and a specific plan for how you’ll divide assets and liabilities if you get divorced.

A prenup is a private matter, and the terms of the contract will vary depending on what you and your fiancé would like to include. Most prenups will consist of:

  • a detailed list of premarital assets and debts and how you’ll divide each
  • a plan for splitting assets and debts that you and your spouse acquire during the marriage (marital property)
  • an expiration date (if any) for the prenup
  • how you’ll handle marital bills during your marriage
  • whether alimony will be paid to either spouse in the event of a divorce, and
  • whether you’ll participate in divorce mediation before either spouse asks for a trial.

What Is a Postnuptial Agreement?

A postnuptial agreement (or, postnup) is a legal contract that you and your spouse sign after marriage. The purpose of a postnuptial agreement is to settle financial or other issues that are present within the marriage. It’s common for therapists to recommend a postnup for troubled couples because it can address problems that are causing turmoil in the relationship.

Like a prenup, a postnuptial agreement is voluntary and private, so the terms will depend on what the couple wants to achieve with the document. Postnups are helpful for couples who would like to identify separate versus marital assets, or include a plan on how to handle current and future debt that arises from the marriage.

Although a postnuptial agreement allows the couple to address many issues, the court doesn’t allow the contract to include a waiver of either spouse’s child support obligation.

What Does the Law Require for a Valid Prenup or Postnup?

Each state has its own specific requirements for a valid pre or postnuptial contract, so if you’re unsure of what your state’s law requires, you should contact an experienced family law attorney for help.

Agreements Must Be in Writing.

Regardless of where you live, most courts agree that your contract must be in writing to be valid. Although you and your spouse can begin the negotiation process with an oral agreement, you’ll need to put your terms in writing and each of you will need to sign it, with a lawyer or notary public present.

While it is noble to think that both spouses will continue to follow the terms of an oral agreement, putting your requirements in writing will eliminate any miscommunication, expectations, and enforcement issues.

Your Agreement Must Be Fair.

Although the couple controls the terms of a prenup or postnup, the law requires the final contract to be fair to both spouses. For your agreement to be valid, both spouses must fully disclose their finances, meaning both you and your spouse must be honest about your assets and debts before you sign the agreement.

A fair contract will also generally provide marital property to both spouses, not just one. If your agreement gives all the property to one spouse, and leaves the other destitute, a judge may reject it and require a divorcing couples to use state laws and guidelines to determine property division and spousal support.

A judge may also reject your contract if it violates any state laws. For example, in most states, spouses cannot address the issue of child support or child custody in a pre- or postnuptial contract. The law permits couples to negotiate custody, but even in the most amicable of divorces, the judge will need to approve all child support and custody agreements to ensure that they meet the child’s best interest. This must be done at the time the child custody or support dispute arises and cannot be agreed upon in advance through a contract.

Hiring an Attorney

The law doesn’t usually protect you from making a bad deal, so if you sign a prenuptial or postnuptial agreement that doesn’t favor you, you could leave your marriage with less than what your state entitles you to after a divorce.

The laws surrounding prenuptial or postnuptial agreements are complicated, and the facts for each case are unique. If you’re toying with the idea of signing a prenuptial agreement, or if you’re negotiating the terms of a postnup with your spouse, you should consider contacting an family law attorney who can explain your rights and obligations and make sure the contract is fair.

An experienced family law attorney can help you understand the divorce laws in your state, including what each spouse is typically entitled to after a divorce. Your lawyer can also suggest specific terms for you to include and advocate for your best interest.

If you can’t afford to hire an attorney during negotiations for your contract, both spouses should consult with independent lawyers, who can review the document before the spouses sign the final agreement.

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