Basics of a Postnup

By Lia Kopin-Green
/
June 13, 2022

Most people are familiar with prenuptial agreements, especially when it comes to celebrities or millionaires. However, you may not know much about postnuptial agreements, which have recently become more popular throughout the United States. Postnups are created by spouses after entering into marriage and settle the couple’s affairs or assets in the event of a divorce. 

Postnups and prenups have plenty in common, but there are a few key differences that are important to keep in mind. Here is everything you should know before signing a postnuptial agreement.

Why get a postnup?

Similar to prenups, postnuptial agreements serve to sort out finances, estate planning, power of attorney, and other critical arrangements in the event of a divorce. The contracts can clarify the terms and rights of the parties before any conflicts arise in the divorce process, which can simplify and shorten divorce proceedings. While these agreements are valuable to all married couples, postnups are particularly beneficial in certain situations:

  • Preserving valuable inheritances: Inheritance can be referred to in postnuptial agreements as non-marital property. As a result, it prevents a divorced spouse from claiming ownership of their ex-partner's inheritance if they had jointly filed the funds or property. 
  • Children from prior marriages: With the help of a postnuptial contract, a spouse with children from previous marriages can ensure that his or her separate assets are passed to the kids, instead of to their ex-spouse.
  • Protection against heavy debts: Postnuptial agreements protect the other spouse from being held responsible for debts or liabilities incurred by one of the spouses.
  • Stay at home spouses: When a stay-at-home spouse gets a job following a divorce, he or she will probably earn less than before as a result of being out of the workforce. A postnuptial agreement may ensure they will receive financial compensation for those "lost years."

What is included?

State laws govern what can or cannot be included in a postnuptial agreement, but there are a few subjects that are normally included in postnups nationwide. Firstly, it is common for couples to draw up postnuptial agreements in order to clearly define what property will be kept separate and what will be considered marital property in the event of divorce or death of one of the spouses. Moreover, spousal support clauses are often included. Properly drafted postnuptial agreements can protect a spouse from paying alimony or specify the conditions under which it must be paid.

What cannot be included?

There are certain provisions that will not be considered valid if they are included in a postnup. Since child support and custody are determined by the court according to the "best interest of the child," these issues cannot be established by a postnuptial agreement. Also, postnuptial agreements cannot be used to regulate routine aspects of a marriage, such as daily chores.

Differences between a postnup and prenup

While both prenuptial agreements and postnuptial agreements typically address essential practical and financial considerations in the event of a divorce, the two agreements have several differences:

  • Timing: There is one major difference between postnuptial agreements and prenuptial agreements: their timing. Prenups are signed before the marriage and become valid on the wedding day, while postnups can be signed long after the couple says “I do.” It isn't uncommon for couples to sign a postnuptial agreement after years or even decades of marriage.
  • Enforceability: Since postnuptial agreements are more rare than prenups, state laws pertaining to them can differ. For instance, while some states consider a prenuptial agreement valid as long as it’s signed by both parties, postnups aren’t enforceable until they’ve been approved by the court.
  • Coercion: Since the spouses are still separate, independent parties when a prenuptial agreement is signed, it is easier to prove that it was signed without any coercion. Postnuptial agreements are subject to close scrutiny by the court for coercion.
  • Coverage: Prenuptial agreements will typically determine matters regarding assets and property owned before the marriage took place. Postnups, on the other hand, are signed once the couple is already married. Therefore, they may consider factors that didn’t exist before the marriage such as new properties or businesses.

Are they enforceable everywhere?

Postnuptial agreements are still a relatively new concept, although they are becoming more common with time. Nevertheless, differing state laws make these contracts more difficult to enforce in some states than in others. The majority of states simply require the contract to be signed without coercion and with full disclosure of finances in order to be valid. Others, however, have additional regulations. For instance, postnuptial agreements in California must demonstrate ​​"the highest good faith and fair dealing [by] each spouse, and neither shall take any unfair advantage of the other.”

How do I get a postnup?

If you and your spouse decided that you want a prenup, it’s time to seek the services of an experienced divorce attorney. Prenuptial agreements should always be drafted with the assistance of an attorney, and some states even mandate that both parties have their own legal representation,

You will start off the process by gathering all of your financial information and documents including bank statements, retirement account details and property appraisals. Then, you will work alongside your attorney to draft a personalized agreement that will consider both you and your spouse’s rights and wishes.

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