Here's the Difference Between Pre- and Postnuptial Agreements
You’ve likely heard of a prenuptial agreement—a legal agreement signed by a couple before marriage to sort out their finances in the event of divorce—but you may be less familiar with its counterpart, a postnuptial agreement.
While thinking about the hypothetical ending of your marriage is (hopefully) the last thing on your mind, it’s important to understand your options in order to fairly decide how your finances and other valuable assets could be divided in the event of divorce or another life-altering scenario.
What's a Postnuptial Agreement?
At its simplest, a postnuptial agreement (or postmarital agreement) is a formally signed legal agreement between two people who are already married (or in a civil union) that settles issues between them, often related to their finances. Entering into a postnup—which can happen anytime during a marriage—allows couples to iron out issues proactively, such as how they'll divide their property and/or marital debt; whether or not one spouse will financially support the other and any children under 18 (and for how long); or how property will be handled if one partner passes away. And remember, what a couple is and isn’t legally allowed to include in their postnup depends on which state they’re in.
The Difference Between Pre- and Postnups
Both pre- and postnups are legal agreements between two people, and can in theory include a similar set of provisions, but there’s a slight difference. “Prenups and postnups are essentially the same thing but with a different label based upon the time they were signed,” says Stuart Slotnick, chairman of the Matrimonial Department of Buchanan Ingersoll & Rooney. Prenups are signed before marriage, and postnups are signed after marriage.
Everyone's circumstances will look different. In some cases, couples plan to sign a prenup, but for some reason don’t get around to it before their wedding, so it turns into a postnup with the exact same provisions. Other couples will enter into a prenup, then choose to amend some of the terms down the line—whether it’s one week or 17 years after saying “I do.”
Common Reasons for Getting a Postnup
“Postnuptial agreements usually settle disputes a married couple is having,” Slotnick says. “There may be an event or set of circumstances that arises during the marriage that makes one party feel [financially] uncomfortable. The exercise of entering into a postnuptial agreement resets or balances the situation between the parties. It can resolve issues with confidence and finality.”
For example, if one spouse earns more money than the other (or is the only earner in the family), the lower earner could feel insecure about whether or not they’ll be taken care of financially in the event of a divorce. In this case, a postnup allows the higher-earning spouse to promise formally to support their spouse, come what may. By signing a postnup, they wouldn’t be setting their marriage up for failure—despite the stigma around pre- and postnups. What this process does is alleviate financial anxiety and give both partners peace of mind.
Another scenario is if one spouse has a lot of debt or has been financially irresponsible. “If one party is accumulating debt and the other party is concerned they’ll have a tremendous amount of marital debt, then they might enter into an agreement about how to allocate debt in the case of dissolution of the marriage,” Slotnick says.
Should You Consider Entering Into a Postnup?
“It can be very helpful when one party feels uncomfortable with a situation, but if there are no issues [between you and your spouse], it’s more likely than not a postnuptial agreement isn’t needed,” Slotnick says. “However, if there are issues at least one party feels, you should consider exploring one.” For example, did you just inherit money from a relative? You might consider signing a postnup to protect such a large influx of cash against potential financial uncertainty in the future. Or did one of you stop working full time to stay home with your children? A postnup will ensure all parties—including the kids—will be financially supported.
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