Postnuptial agreements could be the saving grace for many people who may have looked past getting a prenup before getting married. They may have not explored prenups in the first place because of preconceived notions that they 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.
Granted, discussing postnuptial agreements could feel as daunting as talking about getting a prenup. However, these agreements provide a legitimate incentive for couples to try to improve on their marriages, or establish clarity on money issues and other goals before separating.
What is a Postnuptial Agreement?
A postnuptial agreement, casually referred to as a “postnup,” is a contract in which you and your partner decide on how to split your assets in the event of a marriage dissolution or death.
So, if you’re asking, “Can I get a prenup after getting married?” The answer is a resounding, “Yes.”
Reasons Why You May Need a Postnup
As with a prenup, some signs could point you towards considering a postnuptial agreement. Once you’ve decided to move forward, the first thing you should consider is how to read the room. There’s a chance that you could hurt your spouse’s feelings if you suggest signing a postnup—especially if you’ve never discussed such an agreement before getting married. On the other hand, if you’ve both discussed getting a prenup, but never signed one, you may be able to cross that bridge more smoothly. Since the conversation isn’t exactly a new one, you have a head start on your postnup conversations. In any case, let’s take a look at various scenarios to consider getting a postnup.
Perhaps your spouse has been incredibly irresponsible from a financial standpoint—racking up debt without your knowledge. Now that you know, you’re thinking of ending things. In this case, you, as the responsible partner, 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.
Additionally, finances may be a continued source of stress in your marriage. Sharing accounts and financial responsibility is not something the two of you are handling 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
In this case, you could be wondering 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.
The marriage is on the rocks
When your partner asks for a divorce, it can be stunning. In the case that you’re still fighting to save your marriage but you understand that it could all end, you might want to consider getting a postnuptial agreement.
One of the benefits of suggesting a postnup at this point is that it could help avoid legal battles over money matters during the divorce. You both know that the marriage is in trouble, and since that protects you both, your partner might be open to it.
A lot of money is in the marriage
If one of you—or the two of you—are very wealthy and could stand to lose a lot of money in the divorce, a postnup is a good idea if you never got a prenup in the first place. It’s recommended that you talk about prenups before walking down the aisle, but postnups provide you with a chance to revisit important financial conversations.
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. You may already have had a prenup in place, but adding this to the prenup through a postnup will ensure that you can protect yourself.
The Postnup Requirement
For a postnuptial agreement 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. If there is any indication that one party did so under duress or a threat, the agreement will be voided.
- Disclosure: When you both sign the agreement, you will need to make full disclosure of your assets, income, and liabilities. You need to understand this because postnuptial agreements will spell out how to handle these things if the marriage breaks down. If one party relies on inaccurate information, the agreement is non-enforceable.
- Fairness: Postnuptial agreements can’t be one-sided or unjust to one party.
- Validity in Execution: The agreement will need to meet the state’s laws. Signatures should be notarized, and other legal requirements should be met.
Postnup state laws
State laws generally vary when it comes to postnups—just as they do with prenups. For instance, some states won’t allow couples to use postnuptial agreements to decide on alimony and child support payments. Others don’t even recognize postnuptial agreements at all. 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. So, you’ll want to know your state’s laws concerning postnups from the get-go or consult a family law attorney.
Postnups, like prenups, require you 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 for postnups). This way, you and your partner know exactly what relevant questions to ask and what topics to cover. Of course, if you need an attorney to walk you through the process, we’d be happy to help with any and all questions you may have about prenuptial agreements.