With the frenzy and excitement of planning a wedding and a new life with your soon-to-be spouse, you may forget to work out the terms of a prenuptial agreement. Or maybe you and your spouse thought you didn’t need a prenup, but now you’re reconsidering.
If you’re wondering, “Can you get a prenup after marriage?”, the answer is no. By definition, a prenup must be signed before a couple marries. But you may get many of the same benefits that a prenuptial agreement offers by signing a postnuptial agreement with your spouse.
In this article, we’ll explain what a postnuptial agreement is, why you might consider one and what makes a postnup enforceable so you can better decide if you want to seek one.
Can you sign a prenup after marriage?
You can’t sign a prenuptial agreement after marriage, but that’s OK because you likely still have the option of signing a postnuptial agreement.
Essentially, having a postnuptial agreement with your spouse is like having a post-marriage prenup. Both allow married couples to decide how they’ll divide property and debts in a divorce or after the death of a spouse.
Note that most, but not all, states recognize postnuptial agreements. If you enter into a postnup in the state of Iowa, a judge may refuse to enforce your agreement. And since Ohio only recently passed legislation to recognize postnuptial agreements, some courts in the state may be working out how to handle postnups.
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What can a postnuptial agreement do for me?
When a married couple divorces, courts often divide marital assets and debts among the spouses and allow the spouses to keep their separate assets and liabilities for themselves. When a court defines what is marital, what is separate and how to distribute marital property and obligations, it can be a lengthy, hit-or-miss process for the parties involved.
Taking your financial matters to divorce court may also be time-consuming and costly because you may have to attend a multiple-day hearing and pay significant fees to your attorney. And in the end, a divorce court might hand over a more substantial portion of your assets to your spouse than you anticipated.
A postnuptial agreement may help you stay in control of the outcome of a divorce or separation and avoid these situations. As long as it’s enforceable in your jurisdiction, a postnup may typically dictate the following to the court:
- Whether you or your spouse will be entitled to spousal support and the amount that either of you will pay
- Whether you or your spouse will be entitled to keep the marital home and how either of you will facilitate transferring the marital home to the other
- How you and your spouse will divide the sale proceeds of any marital property
- How you and your spouse will handle marital debts
- What property will be considered marital and what property will be regarded as separate
- How you or your spouse will distribute property from your estate in a trust or will
Once a court approves your postnuptial agreement, all enforceable terms may become the terms of your divorce decree.
Why get a postnuptial agreement?
A postnuptial agreement may help you and your spouse hammer out the financial details of a potential divorce while your relationship is still amicable. You might not want to think about a divorce while you’re happily married, but entering a non-contentious agreement regarding how to deal with property and liabilities in the event of a split may prevent stress and expensive legal proceedings if a divorce ever becomes a reality.
Also, finances can constantly and rapidly change over the course of a marriage. If your property starts to appreciate in value after you get married or if you or your spouse takes on a new debt (like a student loan) after walking down the aisle, a postnuptial agreement may give you control over how those financial changes will be handled in a divorce proceeding.
Any of the following changes might be a reason to start discussing a postnuptial agreement with your spouse:
- One or both spouses buys a new home
- One or both spouses’ investments begin to do well
- One or both spouses starts a new business
- One or both spouses loses or wins a lawsuit
- One or both spouses’ business takes off or starts to fail
- One or both spouses takes out a loan
- One or both spouses gets a new job
- One or both spouses loses work
Are all postnups enforceable?
Not all postnups are enforceable. A court is unlikely to enforce a postnuptial agreement if the court believes the deal is unconscionable or unfair. This means courts often refuse to consider a postnup in divorce proceedings if the formation or the terms of the agreement are too one-sided.
Unfair formation of a postnuptial agreement
A judge may hesitate to enforce a postnuptial agreement if they believe that one of the spouses didn’t have an adequate opportunity to negotiate their position before signing the contract. The negotiation, drafting or signing of a postnuptial agreement may lack fairness if:
- A spouse wasn’t allowed access to all the other spouse’s financial information before signing
- A spouse was pressured to sign the agreement
- A spouse wasn’t given enough time to read over the terms of the contract before signing
- A spouse wasn’t given the opportunity to consult with an attorney about the agreement before signing
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Unfair terms in a postnuptial agreement
A divorce court might reject a postnuptial agreement if it believes one spouse is getting virtually all the benefits while the other spouse is shouldering almost all the burdens. For example, if your postnuptial agreement states that your spouse will pay your student loans and all your joint tax liabilities in exchange for the old family car while you receive the marital home and alimony without any obligation to pay any of the marital debt, the court might find that agreement unreasonable.
Of course, whether a judge will find your agreement unenforceable depends on your unique circumstances. Before deeming the terms of your postnuptial agreement reasonable or unreasonable, a judge may consider:
- What resources you and your spouse have
- Your income and your spouse’s income
- The amount of separate debt you each have
- The amount of marital debt there is
- Your and your spouse’s earning capacity
How an attorney may help
You’re free to write a postnuptial agreement on your own, but you might find it helpful to hire an attorney to do the job. Understanding your financial and legal rights and how the terms of a postnuptial agreement may affect those rights isn’t always a simple task.
An attorney may help determine what information you need for negotiating the best terms in your postnuptial agreement. With that, they may accurately estimate your legal and financial needs in a potential divorce and safeguard you against unintended consequences. They may also identify potential pitfalls or benefits of including specific provisions in your postnuptial agreement so that your final agreement is fair.
