Postnuptial Agreements: Who needs them and why? (2022)

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A wedding is an exciting time. There are beautiful flowers, dresses, and celebrations. The couple vows a lifetime of love, respect, and commitment to one another.

When they enter into their life together, they’re happy and content, and they never expect that to change. But they can’t predict the future.

Unfortunately, people fall ill, incur a disability, and die every day. The divorce rate is almost 50%. Though painful to think about, these things can and do happen.

If one partner in a marriage is at a financial disadvantage, they could face more than emotional suffering. They could face financial hardship too.

Postnuptial Agreements: Who needs them and why? (1)

It’s never easy to have a conversation about your relationship ending. But it’s far better to have the conversation when you’re both happy, healthy, and on the same page.

Like it or not, when you marry, you also enter into an economic relationship.

It’s hard enough to talk about your marriage ending. But it’s even more difficult to discuss when it has to do with money.

(Video) Postnuptial agreement explained

Yet, no matter what your situation, you need to discuss what would happen financially, and otherwise, if your relationship were to end.

Why Consider a Postnuptial Agreement?

In a perfect world, couples work things out on their own. They keep the lines of communication open. They don’t expect or want their relationship to end, but they also recognize that life has a way of changing in unexpected ways.

If the day comes when they realize they can’t be together forever, they work things out in a respectful way. A way that serves the best interests of both individuals (and children too).

But it doesn’t always work out this way.

Two of the three leading causes of divorce are money and communication problems. One way to address these problems, for better or worse, is with a postnuptial agreement.

Even healthy, happy couples might need something formal in place for reassurance.

Some couples find themselves at a point where they need a little backup, a guarantee, some degree of certainty for now and in the future.

In fact, postnuptial agreements can save some marriages.

For some, a postnuptial agreement provides a way to resolve a disagreement or ongoing conflict – with a level of certainty built-in.

You could look at a postnuptial as buit-in marriage/divorce insurance.

Even if it doesn’t save the marriage, it can provide the basis for a smooth and drama-free divorce.

(Video) Postnuptial agreements

What is a Postnuptial Agreement?

Postnuptial Agreements: Who needs them and why? (2)

You’ve heard of a prenuptial agreement – a legal contract signed before a couple gets married. The prenuptial agreement specifies what would happen, financially and otherwise, if a marriage ends.

A postnuptial agreement is a legal contract made between a couple already married or in a civil union. It spells out what would happen if the marriage were to end, either by divorce or death.

A postnuptial agreement establishes how to divide assets and liabilities if a couple gets a divorce or legally separates.

It can include provisions for spousal support and, in some cases, spells out custody and visitation of legal dependents.

Why Couples Sign Postnuptial Agreements

Each couple signs a postnuptial agreement for their own reasons. But there are three main reasons couples have postnuptial agreements.1

Couples sign postnups to:

  1. Establish the division of assets and liabilities and/or clarify provisions for spousal support if the relationship ends in a divorce. This includes both marital assets and liabilities, as well as assets and debts brought into the marriage.
  2. Determine how to divide the couple's assets if one spouse dies. This usually means one spouse is waiving their marital rights to property or other assets they would have otherwise have entitlement to.
  3. Create a plan like a separation agreement. This type of postnup sets the scenario for how things would go in the case of a divorce. It spells out child custody, child support, and spousal support, as well as the division of assets and liabilities after divorce.

What Does a Postnuptial Agreement Include?

What can and cannot be included in a postnuptial agreement is up to each state. Below is a general list of what one may include:

  • How to divide property and assets
  • If there will be spousal support (if so, for how long)
  • How to divide marital debt (mortgage, credit card, car loans, etc.)
  • What happens to the assets if one spouse dies during the marriage

You can include provisions for custody and support of legal dependents as part of the agreement, but whether it’s upheld depends on the state law. Some states don’t allow custody to be part of the agreement.

What Makes a Postnuptial Agreement Valid and Enforceable?

With prenuptial agreements, if both parties don’t agree, they can decide not to get married. But in a postnuptial agreement, the couple is already legally bound. This can bring up concerns about one spouse coercing the other into a contract.

To be valid and enforceable, a postnuptial agreement must:

(Video) My Husband Wants A Postnuptial Agreement! I'm Scared.

  • Be in writing
  • Be voluntary (any sign of coercion can invalidate a postnup)
  • Include disclosure of all assets owned by each spouse
    • Each must disclose all their assets, liabilities, and income. If some of the information is missing, untruthful, or not disclosed, the contract is unenforceable.
  • Be fair to both spouses
  • Be valid
    • In most states, both signatures are witnessed by a notary, and some states have further requirements to validate the agreement.

It’s recommended each spouse have an attorney review the document.

A postnuptial agreement is not a guarantee.

It must be upheld in court when the marriage is dissolved. The judge has the right to throw it out if they determine it’s unreasonably one-sided or punitive.

Some states are more prone to enforce a postnuptial agreement than others. It’s on a state-by-state, case-by-case basis.

Who Needs a Postnuptial Agreement? When Might a Postnuptial Agreement Make Sense?

Below are a few of the scenarios where a postnuptial agreement could be helpful.

  • One spouse brought property, other assets, or liabilities into the marriage. The couple wishes to define what happens to them in the event of a divorce or death.
  • When one spouse stops working to stay home and care for the kids, an agreement can make sure that the stay-at-home spouse has financial resources in the case of a divorce. (Also Read: My Financial Mistakes (and wins!) as a Stay at Home Mom)
  • A couple skipped the prenuptial agreement because they weren’t ready, but after marriage determined they were. Some couples find it easier to discuss these issues after they’re married.
  • When one or both spouses have children from previous relationships, they may want to ensure those children receive specific assets. It’s a way to protect the children’s inheritance.
  • One spouse has a spending or gambling problem or has otherwise been financially or legally irresponsible during the marriage. The other spouse wants to protect themselves, economically and legally.
  • Financial circumstances change during the marriage (inheritance, lottery, salary, etc.), and the couple wants to establish what happens to the money if the marriage ends.
  • When money (including salary or windfalls) is inequitable, the couple may wish to set up “rules” for how to invest or spend the money.
  • When the financial priorities of each spouse are different, a postnup can define what takes precedence (college savings, debt payment, investing, etc.).
  • One spouse has their own business they built during the marriage. They want to keep ownership and profits from the business if they get divorced. Without a postnuptial agreement, the other spouse may be entitled to up to half of the ownership and profits from the company in the event of a divorce.

Some Common Questions a Postnuptial Agreement can Address

  • Debt. In a divorce, who would be responsible for paying off the debt and how will the debt be paid?
  • Property. In a divorce, who will get the property and how will it be divided?
  • Money. In a divorce, who will get the financial assets or how will they be split up?
  • Transactions. If one spouse saves, earns, or spends more than the other, should there be set “rules” on spending or saving?
  • Business Assets. If one or both spouses own a business, what would be each spouse’s role in the company after a divorce? How would you divide it, if at all?
  • Goals. What are the financial priorities of the family, and how will they be carried out? College, retirement, new home, etc.
  • Children. If there are children from previous marriages, how will you divide assets in the case of divorce or death?
  • Earning Potential. What if one spouse is no longer able to work? What’s the plan?
  • Death. If one spouse dies, how will the other spouse be able to cope, financially speaking?

When isn’t a Postnuptial Agreement a Good Idea?

There are circumstances when you should not sign a postnuptial agreement.

It is typically when one spouse is at a disadvantage or pressured into the agreement. Though a judge makes the ultimate decision, you should not sign a prenuptial agreement if:

  • It leaves one spouse financially (or otherwise) vulnerable.
  • Both spouses haven’t agreed on all terms.
  • One or both spouses haven’t had adequate time to consider the terms of the agreement.
  • One spouse doesn’t fully understand the terms of the agreement.
  • One spouse feels pressure or is being coerced into signing the agreement unwillingly.
  • Not all financial information has been disclosed by one or both spouses.

Closing thoughts on Post-Nups

Postnuptial agreements can be made in loving and trusting relationships. In fact, it’s better to make these agreements when the marriage is on solid ground.

Postnups aren’t necessarily indicative of problems in the relationship and can further solidify stable relationships.

They also have a place in marriages with conflict or opposing ideas.

They can provide the reassurance and certainty many couples need to be able to move forward in the relationship, whether that means they choose to stay together or proceed with a divorce.

(Video) How To Know If You Need A Post-Nuptial Agreement

1Everything You Need to Know about Postnuptial Agreements

Postnuptial Agreements: Who needs them and why? (3)

Article written by Amanda

Amanda is a team member of Women Who Money and the founder and blogger behind Why We Money. She enjoys writing about happiness, values, money, and real estate.

Postnuptial Agreements: Who needs them and why? (4)Postnuptial Agreements: Who needs them and why? (5)

Women Who Money

Amy Blacklock and Vicki Cook co-founded Women Who Money in March 2018 to provide helpful information on personal finance, career, and entrepreneurial topics so you can confidently manage your money, grow your net worth, improve your overall financial health, and eventually achieve financial independence.

FAQs

Do post nuptial agreements hold up in court? ›

Postnups are not strictly legally binding, but they can be more likely to be upheld than prenuptial agreements because there is no looming wedding date putting pressure on the couple to sign up.

What should be included in a post nuptial agreement? ›

How do you make a postnuptial agreement? Postnups should be made in writing, signed by both parties and two witnesses. The agreement should set out all financial assets and debts of the marriage and explain how these will be distributed in the event of a divorce, dissolution of civil partnership or death.

Can you get postnuptial agreement after marriage? ›

Unlike the more widely known prenuptual agreement, or prenup, a postnup is agreed upon after a couple has married or entered a civil partnership. If you are not yet married, you will need to sign a prenup instead. There is no perfect time to sign a postnup, it can be created at any point during a marriage.

Is a postnuptial agreement legally binding in NY State? ›

Are Postnuptial Agreements Enforceable in New York? Yes, postnuptial agreements are generally enforceable. However, they must be executed in a manner that is consistent with state law. For example, the agreement must be in writing and must be signed by both parties.

Is a post nuptial agreement legally binding? ›

Postnuptial Agreement FAQ. There are many reasons why you and your spouse might consider creating a postnuptial agreement. This is a legally binding contract that allows you to make important decisions ahead of time in the event of a divorce, such as property division.

Can a postnuptial agreement protect inheritance? ›

When you are already married, you still have options to protect inherited assets. You could sign a postnuptial agreement with your spouse. This type of agreement is similar to a prenup and addresses similar topics. You could opt to sign a postnup after marriage, agreeing to keep the inheritance as separate property.

What Cannot be included in a postnuptial agreement? ›

In fact, prenuptial and postnuptial agreements can only include information about financial matters and so should not include terms related to family matters, physical arrangements, or employment.

Is a prenup better than a postnup? ›

Prenups are preferable to postnups in many ways because they are easier to enforce. Because the documentation is drafted before the marriage, it is hard to argue that one person coerced the other into signing.

What does a post nuptial agreement look like? ›

A Postnuptial Agreement is similar to a Prenuptial Agreement because both documents outline the terms of a potential separation or divorce. However, a Postnuptial Agreement is distinctive because you create one after you've married your spouse. In contrast, you can only create a prenup before you marry.

What is a post nuptial certificate? ›

What people may not know is that you can still enter into an agreement to do this, even after the marriage has occurred. This is known as a Post-nuptial Agreement. Post-nuptial Agreements are for people who are married or in a civil partnership, and are made after the marriage or civil partnership has taken place.

Do pre nups stand up in court? ›

It takes into account what you and your partner each brought to the relationship, as well as whatever property you may have jointly acquired. The goal of a Prenup is to detail an agreement that two people have agreed upon and avoids disputes that could end up in Court.

How long before a wedding should you get a prenup? ›

A prenup should always be signed before the marriage takes place. By its very definition, a premarital agreement is a contract agreed to and signed before marriage. Ideally, the process of getting a prenuptial contract should be started ASAP and signed in the region of 1-3 months before your nuptials.

Can a prenup protect you from spouse's debt? ›

Even though both prenups and postnups cannot act as a sword or a shield in protecting you against creditors, they can do one thing pertaining to debt: both can provide you with indemnification from your spouse.

Can you amend a prenuptial agreement after marriage in New York? ›

One of the most commonly asked questions regarding prenuptial agreements is whether or not they can be changed after a couple has married. The answer is yes, a couple can modify or even nullify the terms of their prenup if they so choose.

Can you get a prenup after marriage in NY? ›

In New York, postnuptial agreements are very similar to prenuptial agreements. They allow spouses to define their separate property and marital property, establish alimony or spousal maintenance and can also address pre-marital debt. Like prenuptial agreements, they cannot address issues like child support or custody.

What is a fair postnuptial agreement? ›

Like a prenup, a postnuptial agreement spells out how a couple will divide their assets in the event of a divorce, but it is signed after the wedding—sometimes years afterward.

Can you change a prenup after marriage? ›

After the date of your marriage, you can make new agreements, though not by amending your prenuptial (premarital) agreement. New agreements would be in the legal document known as a post-marital (post-nuptial) agreement.

Can you write your own prenup and have it notarized? ›

Prenups do not have to be notarized, but do need to be in writing and must contain the signature of both spouses. However, a prenuptial agreement can be nullified by the court if it can be established that it was signed under duress, making it best to have a witness even if you are not working with a lawyer.

How do I protect my inheritance from my husband? ›

How to Protect an Inheritance from Your Spouse
  1. Keeping the assets in a trust. Trusts can serve not only as estate planning tools, but also as vehicles to mitigate the ramifications of a divorce. ...
  2. Creating your own estate plan. Many couples create estate plans together. ...
  3. Drafting a postnuptial agreement.
31 Mar 2022

What happens if you have a prenup and your spouse dies? ›

Failure to Make the Prenuptial Agreement Valid

If one spouse dies with a lot of debt, a prenuptial agreement ensures the surviving spouse will not be responsible for paying what is owed. To make sure your prenuptial agreement is valid you need to sign it in the presence of an attorney.

How do I protect my inheritance? ›

Prenuptial and Postnuptial Agreements are the strongest way to protect your separate property from your spouse. Your separate estate and any potential inheritance, or gift, can be clearly defined in an agreement along with rights and responsibilities of both spouses in the event of a divorce.

Do pre nups stand up in court? ›

It takes into account what you and your partner each brought to the relationship, as well as whatever property you may have jointly acquired. The goal of a Prenup is to detail an agreement that two people have agreed upon and avoids disputes that could end up in Court.

What is the difference between a prenuptial and postnuptial agreement? ›

A prenuptial agreement (or prenup) is a contract that a couple enters into prior to marriage that outlines all the terms of divorce in the event of dissolution. A postnuptial agreement (or postnup) is simply a prenup that is created after the marriage takes place.

What does a post nuptial agreement do? ›

A Postnuptial Agreement is a written contract two spouses create after entering into a marriage while they're committed to one another. Spouses use Postnuptial Agreements to outline the division of their assets and responsibilities if they separate or divorce.

How long before a wedding should a prenup be signed? ›

How long before a wedding should a prenup be signed? A prenuptial agreement should be signed at least 28 days before the marriage with all assets and property owned by both parties disclosed.

Why do prenups get thrown out? ›

There are circumstances in which a prenuptial agreement is thrown out by a judge for an invalid stipulation, irrational statements, or an indicator that a spouse signed the prenup under coercion.

Can a pre nup be overturned? ›

A couple's prenuptial agreement must meet strict legal criteria for the document to be legally binding. Otherwise, a family court may overturn their agreement. the agreement is necessary. If the document doesn't meet these specifications, it is not legally binding.

How do you beat a prenuptial agreement? ›

Generally, a prenuptial agreement must be in writing and signed by the parties.
...
To defeat a prenuptial, a party must show the following:
  1. The agreement was signed under fraud or duress;
  2. The agreement is unconscionable;
  3. The circumstances of the parties have changed, making the agreement unenforceable at this time.

Can a wife claim her husband property in divorce? ›

When a marriage under the customary law is been dissolved, the woman has no right to claim for settlement of property even if she contributes to the acquisition of such property. She cannot through a court order compel her husband share the property with her.

Why is a prenup better than a postnup? ›

Prenups are preferable to postnups in many ways because they are easier to enforce. Because the documentation is drafted before the marriage, it is hard to argue that one person coerced the other into signing.

What voids a prenup? ›

The signing party must have full knowledge of the other spouse's property, assets and debts. If it is alleged that the party hid assets from the signing spouse at the time that the prenuptial agreement was created, or that the contract contains falsified financial information, this will void the agreement.

What Cannot be included in a postnuptial agreement? ›

In fact, prenuptial and postnuptial agreements can only include information about financial matters and so should not include terms related to family matters, physical arrangements, or employment.

What is a fair postnuptial agreement? ›

Like a prenup, a postnuptial agreement spells out how a couple will divide their assets in the event of a divorce, but it is signed after the wedding—sometimes years afterward.

What is a post nuptial settlement? ›

A “post-nuptial agreement” is an agreement for couples who intend, at least for the foreseeable future, to remain married. A “marital settlement agreement,” on the other hand, is an agreement for people who are contemplating an end to their marriage, meaning an imminent divorce.

Is a prenup a red flag? ›

However, if prenuptial agreements are drawn up under less than fair and transparent circumstances, the execution of these documents can serve as a red flag for individuals headed down the aisle.

How do you keep assets separate in a marriage? ›

The best way to protect assets is through a prenuptial or postnuptial agreement. If there is anything important to you, you should preserve the separate value through a written contract. The written contract can be drafted prior to and in contemplation of marriage, which is called a prenuptial agreement.

What should a man ask for in a prenup? ›

Here is a non-exhaustive list of what a prenuptial agreement can do for someone contemplating marriage:
  • Protect Separate Property. ...
  • Divide Marital Property. ...
  • Assign Pre-Marital Debt. ...
  • Award Marital Property to Children of the Marriage. ...
  • Provide for Children from Previous Relationships. ...
  • Protect Family Heirlooms.
21 Feb 2022

Videos

1. What is a postnuptial agreement. What is required to make the agreement valid and enforceable?
(Vasquez de Lara Law Group)
2. Prenuptial VS Postnuptial Agreement
(Cabanas Law Firm)
3. Exit Strategies: Post-Nuptial Agreements
(Hartley Lamas Et Al)
4. Postnuptial Agreement And How It Operates
(Conti Moore Law)
5. What is a Postnup or Postnuptial Agreement?
(Cabanas Law Firm)
6. Postnuptial Agreements with Attorney Edward Amaral
(Amaral & Associates, P.C.)

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