Most people have likely heard of prenuptial agreements, frequently referred to as “prenups.” These agreements are created and entered into with an aim to reduce conflict and ensure that issues such as property division and debt allocation are handled smoothly and efficiently in the event of a divorce. Prenuptial agreements are particularly useful for people who have assets and/or children from previous relationships.
But couples are not disqualified from creating such a protective agreement once they are married. Couples already married can still avail themselves of the same benefits that the prenuptial agreement can provide by executing a postnuptial agreement.
Simply put, in a premarital agreement, the parties are not yet married, but plan to be. In a property settlement agreement (marital settlement agreement), the parties are already married, but plan to be divorced. By contrast, a postnuptial agreement is typically intended to cover those situations where the parties did not enter into a premarital agreement before getting married, want to remain married and have no imminent intention of getting divorced, but are still concerned about the possibility of divorce and the effect a divorce could have on their finances.
Entering into a prenuptial or postnuptial agreement does not mean that one’s marriage is troubled or that the parties are skeptical about their marriage’s long-term viability. It is more like having disability insurance. While having such insurance does not mean that the person will ever need it, it merely provides a much-needed safety in the event that something does happen and the person becomes disabled and unable to work.
Some couples do, however, enter into postnuptial agreements, contemplating divorce yet willing to entertain an idea of reconciliation. Agreements created for such couples must especially be entered into with full disclosure by both parties. An independent representation by separate counsel for each party is also highly recommended. Moreover, an absence of coercion or duress, and terms that are fair and equitable are required. Unlike premarital agreements, it is no longer enough that a postnuptial agreement was fair when negotiated and executed. It must also be fair when it is sought to be enforced.
As with a prenuptial agreement, it is important that the two spouses give their mutual consent and that, when drawing up the contract, they hide no assets or liabilities from each other. At a minimum, both parties’ tax returns, and their respective statements of net worth (reflecting assets and liabilities, with stated values) should be exchanged. Less than complete disclosure could be grounds for invalidation of the agreement in the event of a divorce.
To summarize, in a prenuptial agreement, while pressure exists on both parties due to an impending marriage, in theory each party remains free to make their own decisions and look out for what is best for them. They are also free to walk away from a marriage that has not yet occurred, with little or no financial penalty. When the parties are already married, they are still free to make their own decisions based on what is in their best interest but it is much harder to walk away from an established relationship and financial ties. In a mid-marriage agreement, also the potential for abuse and the leveraging of power by one individual over another is much higher, and so courts are much more skeptical towards postnuptial agreements.