You skipped the prenup — is a postnup agreement the right fit for your marriage? Here’s a breakdown of who benefits from a postnup and how to create one.
Postnuptial agreements often carry a stigma in popular culture, much like their prenuptial counterparts. These legal documents outline the management of assets if a couple decides to separate. While some view them as a sign of uncertainty about the relationship, we believe they’re about safeguarding your assets and peace of mind. Being prepared is simply wise.
In recent years, interest in prenups has surged, especially among millennials. A survey by the American Academy of Matrimonial Lawyers revealed that over half of attorneys noticed a rise in prenup requests from this demographic. This could be due to marrying later in life, leading many to want protection for their existing assets. But prenups aren’t just for celebrities; they’re for anyone looking to safeguard their finances should their relationship not last.
However, many couples find themselves married without a prenup. Whether it’s due to oversight or a shift in financial circumstances, you might start considering a postnuptial agreement. This document serves a similar purpose to a prenup, but it’s signed after the wedding — whether it’s days or decades later. Just like a prenup, a postnup doesn’t imply divorce is on the horizon; it simply shows you’re prepared.
Here’s everything you should know about postnups and key factors to consider before signing.
What is a postnup?
A postnup allows spouses to alter their property rights after marriage. As Kelly DuFord Williams, a family law attorney, explains, it lets couples designate property as separate rather than community property. In states with equitable distribution, couples can determine how to divide assets in the event of a divorce.
For context, there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. States like Alaska, South Dakota, and Tennessee have variations of this system. Most states follow equitable distribution laws, meaning assets acquired during marriage are divided fairly, not necessarily equally.
If you want to modify a prenup, you can’t do that with a postnup. A prenup remains unchanged unless revoked, which is possible in all states. Once revoked, you can create a postnup to outline your new terms.
Are postnups as valid as prenups?
Williams notes that prenups are generally seen as more enforceable than postnups if challenged during divorce proceedings. Courts tend to think there’s less chance of coercion when agreements are made before marriage, while assets remain separate.
That said, including clear reasons for the postnup can bolster its enforceability. For instance, if one spouse has significant debt or has inherited wealth, a postnup can clarify the rationale behind the agreement.
“Ultimately, having a postnup is better than having none at all,” Williams asserts. Courts often enforce them, and they can indicate the spouses’ intentions prior to divorce, potentially influencing a judge’s decisions.
Key considerations for a postnup
Before signing any legal agreement, it’s essential to reflect and research. Whether it’s a prenup or postnup, ensure both partners feel comfortable and view the terms as fair. If you feel pressured, it’s a sign more discussions are needed.
Regardless of joint assets or individual inheritances, it’s crucial to converse about asset management during the marriage. Establishing guidelines for handling finances can prevent disputes later. “Addressing these matters upfront can lead to smoother divorce proceedings if necessary,” Williams points out.
Lastly, remember that both prenups and postnups can be adjusted as life evolves. It’s wise to revisit these documents every few years or after significant events, like welcoming a child. Changes such as one spouse receiving a large inheritance or altering career paths warrant revisiting the agreement to maintain fairness.
