Postnups Explained: Getting a “Prenup” After Marriage

What Is a Postnup?

A postnuptial agreement, casually referred to as a “postnup,” is a post-marital contract detailing how you and your partner split up assets and debts in the event of a marriage dissolution or death. Postnups can also be used for for couples that are looking to reorganize their current marital assets during marriage.

Can You Get a Prenup After Getting Married?

The answer is a resounding “Yes.” In fact, a postnup can be established at any point during your marriage, regardless of if it’s been two weeks or twenty years.

Reasons Why You May Need a Postnup 

Postnuptial agreements could be the saving grace for many people who didn’t get a prenup before getting married. They may not have explored prenups in the first place because of preconceived notions that prenups instill doubt and mistrust. 

The real truth is that prenups help you define the rules and guidelines of your marriage and empower you to have crucial talks about finances before tying the knot. Postnups work similarly to prenups but operate after you get married. There are a few differences between prenups and postnups, but are nearly identical in their function.

Granted, discussing postnups could feel as daunting as talking about getting a prenup. However, these agreements provide a legitimate incentive for couples to improve their marriages or establish clarity on money issues and other goals before separating.

Let’s take a look at various scenarios to consider getting a postnup.

Financial Tension

Perhaps your spouse has been incredibly irresponsible financially—racking up debt without your knowledge. Now that you know, you’re thinking of ending things. 

In this case, as the responsible partner, you could suggest a postnup to protect yourself so that you don’t get stuck with debt that legally belongs to both of you in the event of a divorce. However, couples should note that a postnup does not guarantee protection from third-party creditors looking to collect on debt. The postnup may simply provide indemnification from responsibility for the spouse that did not directly incur the debt.

Perhaps finances are a constant source of stress in your marriage. Sharing accounts and financial responsibility is not something the two of you handle well, and you’re thinking about getting divorced for this reason alone. 

A postnuptial agreement can help you and your partner define the roles and responsibilities that may be causing tension so that you can continue your marriage without these issues continuing to haunt you.

For example, your postnuptial agreement can include provisions regarding access to credit cards, how assets will be characterized, and who will be responsible for maintaining certain assets.

Your Spouse Has Kids From a Separate Marriage

You might wonder whether your assets would go to your spouse’s children rather than your own should you pass away. With a postnup, you can clarify this matter and protect your kids from the previous marriage too. 

A Lot of Money Is in the Marriage

If one or both of you are wealthy and could stand to lose a lot of money in a divorce, a postnup can help. Postnups allow you to revisit important financial conversations you didn’t have before you married.  

You Go Through a Significant Financial Change 

Perhaps one of you inherited a boatload of money after getting married and would like to protect it. But what if you already had a prenup in place? A postnup will ensure that you can protect yourself after marriage since the prenup couldn’t have accounted for this inheritance beforehand. 

Postnup Requirements

For a postnup to be enforceable and valid, it must meet the following requirements: 

• Written down: No law considers oral postnuptial agreements as valid. They must be in written form.
• Voluntary: Both partners need to sign the agreement intentionally and voluntarily. The agreement will be voided if there is any indication that one party did so under duress or a threat. 
• Disclosure: When you both sign the agreement, you must fully disclose your assets, income, and liabilities. This is crucial because postnuptial agreements spell out how to handle finances if the marriage breaks down. If one party relies on inaccurate information, the agreement will be deemed non-enforceable. 
• Fairness: Unlike prenuptial agreements, postnuptial agreements can’t be one-sided or unjust to one party because spouses owe a fiduciary duty to one another under California law. 
• Validity in Execution: The agreement must meet the state’s laws. Signatures should be notarized and meet any other legal requirements.

Can You Write Your Own Postnup?

A couple can technically create their own postnuptial agreement (or prenup, for that matter). However, I recommend consulting with an attorney to ensure it’s enforceable.

What Can’t Be Included in a Postnup?

As a general rule, postnups address financial and property matters. For example, some states won’t allow couples to use postnuptial agreements to decide on alimony and child support payments. Others don’t even recognize postnups at all.

State laws generally vary when it comes to postnups. In California, spouses have a fiduciary obligation to each other, so the agreement must possess the “highest good faith and fair dealings,” according to Family Code Section 721. 

You’ll want to know your state’s laws concerning postnups from the get-go or consult a family law attorney for legal guidance.

Next Steps

Postnups are like prenups after getting married. They require you and your partner to have tough but important conversations about your finances and other goals. 

To help you with these talks, use this prenuptial agreement planner (remember, even though it’s called a prenup planner, the same principles apply to postnups). This way, you and your partner know exactly what relevant questions to ask and topics to cover.

Remember, it’s never too late to put a postnup in place to empower a successful marriage or facilitate an amicable divorce.