If you’re preparing to walk down the aisle, you might have considered whether to get a prenuptial agreement or wait until you’re married and opt for a postnuptial agreement.
Whether you choose one or the other, or even both, having one of these agreements in place can provide you with a financial safeguard. Without a prenuptial or postnuptial agreement, one spouse or both can pay dearly. Despite divorce rates being at a record low of 39% (down from 50% in 2010), these odds aren’t necessarily something you can bank on.
The question is: “What’s the difference between prenuptial and postnuptial agreements?” Keep reading to find out.
Difference Between Prenuptial and Postnuptial Agreements
The key difference between prenuptial and postnuptial agreements is timing. As the prefixes to the terms suggest, a prenuptial agreement is entered into before you get married. A postnuptial agreement is like a prenuptial agreement, except it is drafted after you’ve already tied the knot.
Both are legal contracts outlining how a couple will divide assets and debts in a divorce. The agreements can contain various clauses about spousal maintenance as well as how to handle property and business interests.
In fact, almost anything within reason is fair game to draft into one of these agreements, including pet custody, rules for social media posting, and more.
Both prenuptial and postnuptial agreements can be advantageous because they set clear expectations, giving both spouses a sense of security because they know exactly where they will stand financially if the marriage ends.
Further, these agreements can simplify divorce because couples can avoid the dramatic and emotional battles that often come with making decisions about dividing property. Everything has already been decided in advance.
There are a couple of things, however, that can’t be outlined in either a prenuptial or postnuptial agreement, namely child custody and child support.
What Is a prenuptial agreement?
Discussing financial habits and values toward money before you get married is important, and drafting a prenuptial agreement can help facilitate these talks. Commonly referred to as a “prenup,” a prenuptial agreement outlines a partner’s financial rights and responsibilities across a variety of scenarios, including separation, divorce, or the death of a spouse.
Pros
Though typically associated with high-net-worth individuals, prenuptial agreements are attractive to couples from all walks of life for the following reasons:
- Ensure you’re on the same page financially
- Protect your assets and business interests
- Secure an inheritance
- Avoid being held responsible for a partner’s debt
- Create financial transparency
- Set clear expectations
- Provide financial security for one or both spouses
- Prevent nasty or expensive court battles
- Protect the financial interests of children
Cons
Though incredibly valuable, prenuptial agreements can have a downside, including:
- Risk creating tension or dampening a romance
- Lead to a perceived lack of trust before a marriage gets off the ground
- May create financial or power imbalance
- Can become inequitable if circumstances change
- Cannot determine child custody or support terms
Despite the potential cons of a prenup, most agree that the protections afforded move the balance in favor of getting a prenup.
Who needs a prenuptial agreement?
These agreements are often necessary when one spouse is entering the marriage with significant wealth and they want to protect it in the event of a divorce.
You might also want a prenuptial agreement if your estate is substantial or if you are expecting a large inheritance you would like to ensure remains in your possession.
Another compelling reason to enter into a prenuptial agreement is you have children from a previous marriage and you want to protect their financial security in the event of your death. Most states will automatically pass your estate to a spouse, but if you want to alter this arrangement, a prenuptial agreement is an interest that can allow that to happen.
What is a postnuptial agreement?
In simple terms, a postnuptial agreement, also referred to as a “postnup,” is like a prenuptial agreement that outlines the division of financial property, assets, and debts, except it’s formed after you’ve already been married.
It should be noted that courts take a more critical eye on postnuptial agreements than they do on prenuptial agreements. The reason is that it is considered unusual to enter into a legal contract with a spouse after you’re married. To help increase the chances of enforceability, the agreement should be fair and equitable.
If one spouse is perceived to be receiving the short end of the stick, so to speak, courts will be reluctant to enforce the agreement, which could result in an unexpected and unfortunate outcome.
Some couples get so caught up in the excitement and romance of planning a wedding that the task of creating a prenup either never comes up or gets brushed aside. In these instances, couples might decide to draft a postnup after they’ve settled into a routine and had a chance to contemplate all of the implications.
Pros
Even if you didn’t get a prenuptial agreement, a postnuptial agreement can provide many of the same benefits of a prenup, including:
- Asset protection
- Financial clarity and certainty
- Ability to preserve family wealth
- Business protection
- Customized spousal support arrangements
- Protection against creditors
- Estate planning for children and future generations
- Ability to reflect on a change in circumstances
- Privacy through keeping your financial affairs out of public record if you divorce
- Facilitate conflict resolution
Cons
Despite the long list of pros of having a postnuptial agreement, there are some drawbacks:
- More difficult to enforce
- May cause marital strain or conflict
- Requires full financial disclosure to the other spouse
Who needs a postnuptial agreement?
A long list of circumstances can prompt spouses to consider having a postnup. During the course of a marriage, it’s not unusual for a financial situation to change or the marriage to evolve to a point where it becomes important to protect assets individually.
Some of the most common triggers that prompt couples to get a postnup include:
- One spouse inherits a large sum of money
- A partner accumulated significant debt
- There is infidelity, or the marriage is rocky
Assets Brought Into Marriage by One Spouse
When couples get married they merge their assets, and that property becomes marital property. Upon divorce, that property may be divided equally or equitably, depending on the state in which you live and whether there are any superseding agreements in place.
Often, however, one or both spouses enter into a marriage already having their own property, which is referred to as separate property. Upon divorce and without an agreement or arrangement to the contrary, separate property remains with the spouse who brought it into marriage.
Types of assets that can be brought into a marriage by one spouse include the following:
- Real Estate (Including the Primary Residence)
- Inheritance and Family Trusts
- Family Business
- Investments
- Child Maintenance Payments
- Savings, Shares, and Pensions
- Business Assets
- Personal and Sentimental Valuables
How can nuptial agreements protect you?
Inherently, nuptial agreements are a popular strategy to plan for the possibility that a marriage goes south. You never know how a person may change over the years, so having the following aspects outlined can serve as a healthy reminder of your mental well-being and a stabilizer for the relationship as a whole.
- Asset Protection
- Debt Allocation
- Alimony and Spousal Support
- Inheritance and Estate Planning
Consult With an Experienced Asset Protection Attorney
Prenuptial and postnuptial agreements can serve an important function for asset protection, estate, and marriage planning. While a prenuptial agreement is often preferable due to potential enforceability issues, both can be valid in different circumstances. If you are interested in creating a prenuptial or postnuptial agreement, contact Blake Harris Law today.
