Prenup vs Postnup: Everything You Need to Know
When it comes to prenups vs postnups, there's a lot of confusion and misconception floating around. It's understandable. Nobody wants to think about their marriage ending (and what it might mean for your finances).
But the surprising truth is that prenuptial and postnuptial agreements can actually protect your relationship and help you get on the same page about money. Here's everything you need to know about prenups vs postnups and how they impact your financial responsibilities.
*This article is for general, educational purposes. Nothing said here should be construed as investment, tax, or legal advice. Consult the relevant professional to understand your personal situation and available options.
What Is a Prenup?
A prenuptial agreement (let's just call it a prenup) is a legal document you and your partner sign before you get married. It spells out how you'll handle your finances and marital assets if you ever split up. Prenups can also outline how you'll manage money during your marriage.
Research shows that couples who enter prenuptial agreements are most often looking to define property as separate or marital, protect against debt, and map out inheritance and gifts. Some people also use it to clarify financial responsibilities and protect business interests.
Can You Get a Prenup After Marriage?
You can't get a prenup after you're already married. "Pre" nuptial means before marriage. If you're already married and thinking, "I wish we'd done this," there's another option: a postnuptial agreement.
What Is a Postnup?
A postnuptial agreement (or postnup) is basically the same thing as a prenup, but you sign it after you're already married.
Maybe you've inherited some money, started a business, or just want to get clear about financial assets and responsibilities. Whatever the reason, a postnup can help you sort out these details even if you and your partner are already married.
Postnups are getting more and more popular. In a survey by the American Academy of Matrimonial Lawyers, 50 percent of divorce attorneys said they have seen an increase in postnups.
What Is the Difference Between a Prenup and Postnup?
The main prenup vs postnup difference is timing. Prenups happen before marriage, and postnups after.
Otherwise, both prenups and postnups deal with largely the same financial matters, such as marital property, spousal support, asset protection, financial obligations, inheritance, and more. But neither prenups nor postnups can handle matters that have to do with your existing or future children.
Courts may also scrutinize postnups more carefully. When you're already married, there's a special relationship of trust that could potentially be taken advantage of when it comes to financial arrangements.
Prenup vs Postnup California
Both prenups and postnups are recognized in California, but they have to follow strict rules.
California is a community property state, which means assets acquired during marriage are typically split 50/50. But with either a prenuptial or postnuptial agreement, you can decide to handle things your own way. Both parties will need independent legal counsel, and there's a 7-day waiting period for prenups.
Should You Get a Prenup?
There's no right or wrong answer, but you should consider getting a prenup if:
You own a business
You have significant assets or inheritance
You had a bad experience in a previous divorce
You have children from a previous marriage
You want to clarify financial expectations and responsibilities
You're marrying someone with significant debt
As a Couples Financial Coach, I often see couples who are hesitant about prenups.
But the truth is that they can help you build trust by putting everything on the table. Signing a prenuptial agreement forces you and your partner to ask each other important financial questions many couples avoid.
Should You Get a Postnup?
A postnup might make sense if:
You missed the chance to get a prenup
Your financial circumstances have changed significantly
You want to protect a new business or inheritance
You're working through financial issues in your marriage
You're trying to rebuild trust after financial infidelity
You want to clarify financial responsibilities
It doesn't matter if you got married last month or 20 years ago - you can still get a postnup for more financial transparency.
Postnup or Prenup Doesn't Mean Divorce
You might be thinking: "If we need a prenup or postnup, doesn't that mean we don't trust each other?" Actually, it's quite the opposite. These agreements can be all about being honest and transparent with each other, actually strengthening your marriage by:
Getting you talking about money (which many couples avoid)
Creating clear expectations about financial responsibilities
Protecting both partners' interests
Reducing anxiety about financial "what-ifs"
Building trust through transparency
Overall, talking about prenups and postnups can be uncomfortable at first, but these documents help you prevent big potential conflicts in the future.
FAQs
Are Postnups as Good as Prenups?
Yes, both are valid legal documents. Prenups might have a slight edge in court because they're signed before marriage when both parties are more likely to be on equal footing, but a well-drafted postnup (created with proper legal counsel and full financial disclosure) should work just fine.
How Long After Marriage Can You Do a Postnup?
You can create a postnuptial agreement at any time after marriage, whether it's been 2 months or 15 years. There's no time limit. What matters is that both partners enter into it willingly and with full disclosure of their finances.
Are Postnups Enforceable?
Yes, postnups are enforceable as long as they're properly executed. They need to meet certain requirements: both parties must enter into it voluntarily, there must be full financial disclosure, and the agreement can't be extremely unfair.
What Are the Cons of a Postnuptial Agreement?
If you and your spouse aren't used to talking about money, figuring out the terms of your postnup can put a potential strain on your relationship. But this doesn't mean that you shouldn't do a postnup. It's actually a sign that you need to get on the same financial page and start having open discussions about your family finances.
Do Postnups Hold Up in Court?
Postnups, if properly drafted and executed, will often hold up in court. You'll typically need independent legal counsel for both parties, full financial disclosure, and to make sure the agreement is fair and entered into voluntarily.
Why Is a Prenup More Enforceable Than a Postnup?
Courts may look at prenups more favorably because they're negotiated before marriage when both parties have more equal bargaining power (at least in theory). With postnups, courts worry about potential coercion since one spouse might feel pressured to sign. But if your postnup is properly and well-executed, it's likely to be enforceable.
Can You Cancel a Postnuptial Agreement?
Yes, you can cancel or modify a postnup if both spouses agree. You can also challenge it in court if you believe it was unfair, signed under duress, or if there wasn't full financial disclosure.
How Long Does a Postnuptial Agreement Last?
A postnup lasts indefinitely unless it includes specific expiration dates or conditions. But you and your spouse can modify or terminate it at any time if you both agree on the changes. Just make sure they're properly documented and signed.
Is a Postnuptial Agreement Valid in All States?
All states recognize postnups to some degree, but there may be specific requirements or rules you need to follow. The best thing to do is to check your state laws and talk with a lawyer licensed in that state.
Can You Do a Postnuptial Agreement Without a Lawyer?
Technically yes, but it's typically not a good idea. Having independent legal counsel for both you and your spouse helps you create a fair and enforceable agreement. Your state may also require you to have a lawyer to protect your financial interests.
Can You Write Your Own Prenup and Have It Notarized?
You can write your own prenup, but it's risky. Without proper legal guidance, it's easy to miss important details or include provisions that can't be enforced. You need more than a notary's signature to turn a prenup into an enforceable legal contract.
Get Aligned on Your Finances as a Couple
Talking about money with your spouse isn't always fun, but it's one of the most important things you can do for a healthy marriage.
Whether you choose a prenup or postnup, the real value is in the process – having those important conversations about money, setting expectations, and getting on the same page.
Learn about my coaching programs or contact me for a consultation to get started.