The differences between prenup and postnup agreements

| Nov 5, 2020 | Property Division

Prenuptial and postnuptial agreements are contracts that govern the allocation of the couple’s assets and other matters if the couple ever divorce. Prenuptial and postnuptial agreements are both important ways to deal with property division matters but have some differences.

There are some similarities

Both agreements cover similar matters such as property division, allocation of financial assets such as retirement benefits and spousal support. These contracts can also address whether heirlooms and sentimental items will stay with either family if there is a divorce or if a spouse dies.

And there are differences

The major difference is that a prenuptial agreement is signed before the couple’s wedding while a postnuptial agreement is executed after their marriage.

A prenup is typically more enforceable than a postnuptial agreement if a spouse seeks to invalidate it. Courts generally assume that there is a lower likelihood of coercion when independent people sign the agreement before their marriage, and before they entangle their assets.

Prenup advantages and disadvantages

Entering a prenuptial agreement requires a couple to discuss sensitive financial issues before they marry. This can reduce later misunderstandings, eliminate the suspicion that a spouse is entering a marriage for financial gain and help the couple engage in financial planning.

Prenuptial agreements may also provide for the support of children from a previous marriage or relationship. This matter is usually negotiated for the first time during a divorce if there is no prenuptial agreement.

Disadvantages include the insertion of legal and financial matters into an engagement which may be perceived as a lack of commitment to the marriage. Change in laws and court cases regarding prenups may make them harder to enforce.

Postnup advantages and disadvantages

An important advantage is that a couple can decide after marriage that they should have an agreement even if they never entered a prenup. It can handle events that arose since marriage such as an inheritance or if previously undisclosed information arises about a spouse’s finances or substantial debt.

While postnups may be perceived as a lack of commitment to the marriage, these agreements can resolve some issues that would arise during divorce.

Postnuptial agreements may also face legal challenges and be less enforceable than prenups. Courts sometimes presume that spouses in a marriage are less likely to engage in independent decision-making and are most susceptible to coercion.

Each spouse should have their own attorney advise them and help negotiate these agreements. A lawyer can help prepare a fair and reasonable agreement.

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