Prenuptial vs. Postnuptial Agreement Lawyers

A prenuptial or premarital agreement is a contract entered into by both couple members before they get married. Among other things, it establishes property or financial rights in the event of a divorce or separation. Anyone planning to get married may enter into a prenuptial agreement; it is most common with people entering into second or third marriages who have substantial assets they need to protect.

One common misperception of these agreements is that couples who use them don’t trust one another. In many cases, the opposite is true. Prenuptial agreements include full disclosure of assets before marriage, giving each party better knowledge of the other party’s financial state, and with the knowledge they gain by preparing the agreement, they can best plan for their future. A prenuptial agreement is about knowledge, not trust.

Prenuptial agreements typically contain certain clauses intended to ensure peace of mind for both parties. Some examples include:

• Spousal Support: This clause is used to determine the level of financial support (alimony) owed by one spouse to the other in divorce or death
• Property and Financial Separation: Such clauses protect each spouse’s separate property and protect one spouse from the other’s debt
• Child Inheritance: If one of the spouses has children from a prior marriage, this clause will ensure that the children can keep a portion of the estate. Without this clause, the estate would go directly to the most recent spouse (unless there is a will to the contrary)
• A Choice of Law/Choice of Forum Clause: This clause provides what state’s law applies if a party files for divorce. Another connected enforcement clause is a choice of forum clause. This clause expresses what jurisdiction (i.e., state, county) any litigation must take place in

Prenuptial agreements typically contain a sunset clause. This clause causes the agreement to expire when a certain event occurs, such as a wedding, the possession of the marriage certificate, or by a specified date.

How Do I Terminate a Prenuptial Agreement?

If you are looking to end a prenuptial agreement without breaking up with your partner, remember that prenuptial agreements are contracts and, like all other contracts, are subject to certain rules:

• Both parties must voluntarily consent to the agreement, and if a party is forced or coerced into the contract, the contract will be ruled invalid
• Both parties must give complete and honest disclosure of their assets. Failure to do so will jeopardize the legality of the agreement
• The agreement must be considered fair to both parties. If the agreement strips one party of a significant amount of rights and assets while protecting the assets of the other party, it will not be enforceable

Can I Just Modify My Existing Prenuptial Agreement?

A married couple may modify an existing prenuptial agreement by using a postnuptial agreement to supplement the prenuptial. This can be done for any reason, such as:

• One spouse cheats on the other. With some couples, that will give rise to financial punishment
• Changes to the family’s financial situation
• Disagreements over finances or property
• One spouse starts a business without the involvement of the other spouse. An agreement will have to be made to decide who gets the company’s assets and debts in the event of a divorce

A premarital agreement can be amended. However, this can only occur when both parties agree to the proposed changes. The modification can be done by adding amendments to the existing prenuptial agreement or by invalidating portions of the existing prenuptial agreement.

It may be easier to replace a prenuptial agreement with a postnuptial agreement if the prenuptial agreement needs to be changed dramatically.

What is a Postnuptial Agreement?

A postnuptial agreement will most likely cover all of the same topics as the couple addressed in a prenuptial agreement. The key difference between the two is that a postnuptial agreement is signed after the parties get married. As with a prenuptial agreement, a postnuptial contract allows a married couple to determine how issues will be handled if they divorce or if one spouse dies.

Historically, married couples were not permitted to enter into contracts with each other. It was presumed that employing such a contract and thus planning for divorce would endanger the stability of the marriage.

Furthermore, it was believed that one party (typically the husband) would be in a position of power over the other, resulting in the terms being more favorable to him and making the contract not optional for the wife. Now, all states recognize postnuptial agreements. The same issues can arise as in the days before postnuptial agreements, but now there is no presumption that they will.

The laws that govern postnuptial agreements vary by state. Generally speaking, postnuptial agreements are contracts and must satisfy contract laws to be enforceable (i.e., there must be an offer, an acceptance, and consideration (the exchange of things of value).

Most courts will look for the following requirements when enforcing a marriage agreement:

• Writing Requirement: The postnuptial agreement must usually be in writing to be valid. Partially because all oral contracts are less likely to be upheld in court since without anything in writing, it becomes a “he said/she said” lawsuit. The written document must be signed by both parties and be notarized
• Voluntary Agreement: Both parties must voluntarily agree to the contract. Consent or signatures cannot be obtained through threats, physical force, or fraud/deceit
• Fair Agreement: The agreement must be “conscionable.” This means the agreement must be fair and equal between the parties. Postnuptial agreements that are completely one-sided are not considered to be valid
• Full Disclosure: The agreement must be reached under conditions of full and accurate disclosure between the parties. An example of this would be how one party cannot conceal the existence of assets from the other spouse to obtain an advantage.

What Can I Do to Protect Myself In a Postnuptial Agreement?

If you are considering entering into a postnuptial agreement, consider the following points:

• Always read the written contract carefully before signing it, and check for any vague or questionable language in the agreement
• Have a lawyer review it with you before signing anything;
• If your spouse has already hired their lawyer to write the agreement, you should hire them to represent you and examine the agreement on your behalf. Some courts consider it unfair if only one party to a contract is represented by a lawyer, and a postnuptial agreement that was formed where only one spouse has a lawyer may not be enforceable
• Try to anticipate situations that could result in a dispute between you and your spouse in the future to be sure to include provisions regarding those issues

Always record the date of agreement in the written document, as an accurate division of properties is often dependent upon the date of the agreement. Include dates on any revisions of the contract.

Do I Need an Attorney for Prenuptial or Postnuptial Agreements?

Contact a skilled and knowledgeable family law attorney to determine which type of agreement is best for you. An experienced and local prenup lawyer will be able to explain your legal rights and responsibilities according to each type of agreement and assist you in creating the necessary documentation when you have determined which agreement structure would be best.

Finally, an experienced family law attorney can also represent you in court as needed.