You may have heard of a prenuptial agreement. Either through social media or your own research, you probably have some familiarity with the term. Have you, however, heard of a “postnuptial agreement”? In general, a nuptial agreement refers to a contract that is related to marriage, or nuptials. A prenuptial agreement is a contract that you and your fiancé make before the marriage. A postnuptial agreement, on the other hand, is a contract that you and your spouse make after a marriage has already taken place. The purpose of this article is to familiarize you with the concept. It should not be taken as actual legal advice. Make sure to consult a lawyer before making any final decision.
What are postnuptial agreements?
As stated above, these agreements are legal contracts made between you and your spouse. They are intended to discuss things like financial security, division of assets, and support payments. In some places, postnuptial agreements are a close relative to separation agreements. Separation agreements are contracts made in anticipation of divorce. Both agreements will likely contain what to do in the event that a marriage dissolves.
Why would I need one?
Postnuptial agreements are similar to prenuptial agreements in the sense that you get them for similar reasons. People who have already been married previously – especially those ‘burned’ in the divorce – tend to gravitate towards these agreements. If you marry later in life and have children or obtained considerable wealth prior to marriage, you may want to consider an agreement to protect yourself. Sometimes, people get postnuptial agreements because they forgot to get a prenuptial agreement or were not prepared to make one.
Prenuptial vs. Postnuptial Benefits
There are differences between the two agreements in addition to the timing factor. In theory, prenuptial agreements serve a better purpose. Right before you get married, you are probably very much in love with your soon-to-be spouse. It might be better to discuss finances and dividing assets when you actually love the person. If you wait to make an agreement until later in the marriage, you might be in the midst of contemplating a divorce. That might not be the best time to calmly discuss financial matters.
The benefits of a postnuptial agreement is that you do not have to plan for future possibilities, unlike a prenuptial agreement. In a postnuptial agreement, you will likely have a better idea of your assets, projected income, or support expectations. Furthermore, you will have amassed more debt which is often the subject of divorces. A postnuptial agreement may be able to cover all the financial bases.
The biggest difference between the pre-marriage and marriage is marital assets. In some jurisdictions, whatever property you own or acquire during the marriage, including increases in value of property owned before the marriage, is considered to be “marital property”. (This is highly technical, so seek legal advice in your area.) Unless a prenuptial or postnuptial agreement states otherwise, assets are assumed to be marital property, or essentially up for division in case of a divorce.
How do I get one?
Not all jurisdictions allow these type of agreements. Even if they do, there may be extremely different qualifications for getting one. In most places, however, you will need an attorney to draft the postnuptial agreement. They will know what needs to be done for your jurisdiction and counsel you. Some jurisdictions may require that both you and your spouse get separate attorneys to avoid a conflict, so make sure to ask your attorney. Postnuptial agreements are a legal contract. They serve a purpose which is to protect someone in case of a divorce, but they should only be signed after seeking solid legal advice from an attorney who is experienced in the field.