Both prenups and postnups are legal agreements that specifically detail what happens to you and your spouse’s finances during your marriage and in the case of divorce or death. The main difference is that you create a prenup before entering a marriage and a postnup only after you’ve tied the knot.
Should you get a prenup or a postnup?
If you’re not married yet, can’t you simply wait and get a postnup to save time and energy before the wedding? Let’s find out why this is a resounding no.
Clearing the Air on Prenups and Postnups
Prenups and postnups historically have gotten a bad rap. However, people are becoming savvier, especially millennials. Mindful marriage hopefuls are learning how versatile these agreements can be.
Simply put, both postnups and prenups are legal contracts that dictate how couples will divide their finances, assets, and debts if the marriage ever comes to an end. It’s not inherently bad; it’s powerfully practical.
If the couple ends up in divorce, these contracts save time, effort, and money because both parties know what to expect. In addition, prenups and postnups simplify the process of dividing assets and minimize the need for a dramatic courtroom showdown.
What’s Covered in a Postnup vs a Prenup?
Prenuptial and postnuptial agreements can address a variety of marital concerns. The big ones are property division, spousal support, and business interests. However, you can dictate how each of you share your lives on social media and even establish who gets the pets in a permanent split.
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Both types of agreements can cover a lot of ground, but one thing you can’t dictate in either is anything dealing with child custody or child support. That’s because the state and its courts take responsibility for deciding what’s in the children’s best interests.
Not Married Yet? Don’t Wait for a Postnup.
If you’re engaged or even considering marriage, you should start having conversations about money and your future now — not after you get married.
Benefits of Prenups for Premarital Couples
Before you marry, it’s important to understand how you and your partner view money and your relationship. Are you savers or spenders? Do either of you have a lot of debt? Are you expecting a large inheritance or own a business?
Keep asking questions. Conversations like these build trust, transparency, and a tradition of talking through tough topics. Doing so before marriage empowers both of you to be on the same page before the wedding. This way, you’re less prone to uncovering red flags in the middle of a marriage.
With a prenuptial agreement, you can plan ahead for long-term marital success.
Drawbacks of Postnups for Premarital Couples
Of course, you can get a postnup after you’re married.
But if you wait until after marriage to craft a postnuptial agreement, many new factors will come into play.
Postnups Are Harder to Enforce
Most importantly with postnups, married couples owe a fiduciary duty to each other, meaning they must act in mutual good faith and trust. So if married partners enter into a contract, it is usually presumed that the disadvantaged party was unduly influenced.
Therefore, for postnups to be valid, both parties must show that they are both getting something out of the agreement and that neither party is at a disadvantage.
For this reason, postnups can be harder to enforce than prenups, as courts may factor in the possibility of one of the spouses being forced to enter into the postnuptial agreement.
Postnups Can Be Harder to Pull Off
Plus, if things aren’t working out, the law can start to work against you. For example, in states like California, property, debts, and assets acquired during marriage become marital property split 50/50. This default rule may be more beneficial for your partner, so they may be inclined to play hardball when signing a postnup.
In addition, community property will most likely be created during marriage. As a result, you may have to offer significant consideration when asking your spouse to possibly waive their right to the community property.
If you wait to get a postnup after you’re married, you’re putting off the necessary work needed to build a strong foundation for a long-lasting relationship. Instead, you’re gambling that things will continue to work out perfectly with the added pressure of now being legally and financially bound.
Who Should Get a Postnup (vs a Prenup)?
A postnuptial agreement is you’re only option to create a marital agreement once you’ve already tied the knot. They’re valuable tools that can help you clarify and resolve tough scenarios in the event of a divorce, including:
- You inherited a large sum of money after getting married and would like to protect it
- Not getting stuck with the debt you’re partner may have irresponsibly racked up during marriage
- Establishing guidelines on how money is handled after financial infidelity has occurred
- Defining assets that go to your children from another marriage or your spouse’s children from another marriage in the event of death
- If your marriage is on the rocks, you can protect yourself and your partner by saving on divorce legal fees
Bottom Line on Postnups vs Prenups
If you’re not married yet, take the time to do the work and get a prenup instead of holding off for a postnup.
If you’re married, start talking seriously about money and use a postnuptial agreement to solidify your negotiations.
Best Practices & Next Steps
Whether you get a postnup or prenup, they serve similar purposes. They’re one of the best ways to protect you if things don’t work out. So start detailing your financial and life goals and lay them out clearly to review with your spouse.
Once you’ve done the homework, you should get an attorney to review it and ensure it meets the court’s requirements. If your prenup or postnup is found unenforceable or invalid, it will negate all the careful planning you put in.
If you’re in California and have more questions about pre- or postnuptial agreements, feel free to reach out to me for clear, compassionate legal advice backed by over a decade of experience.