Prenups and postnups sound very similar, and even someone unfamiliar with the terms may determine that the timing of each differs. But while prenuptial and postnuptial agreements are both legal contracts that govern how a couple will address their finances in the event of a divorce, there are a number of key differences between the two. This includes not only when they may be created but also how and the strength of their enforceability.
If you’re considering a prenup or postnup but aren’t sure which one, if either, makes more sense for your relationship, this article may help. We discuss the similarities and differences between a prenup and a postnup, which one might be a better fit for you and how an attorney may help.
Similarities between a prenup and postnup
Prenups and postnups are both legal agreements that dictate how a couple will handle certain financial matters and divide their assets and debts if their marriage ever ends in divorce. Prenups and postnups are similar in the topics they cover, commonly addressing the following:
- Property division
- Debt allocation
- Spousal support or alimony
- Business interests
- Any other topics that don’t violate law or public policy
Prenuptial agreements and postnups are also similar in terms of the benefits they may provide. For example, both may provide:
- General asset protection
- Preservation of family wealth and inheritance rights
- Clarity and clear guidelines regarding financial rights and responsibilities
- Stress reduction and peace of mind due to the knowledge that a plan is in place
- Greater transparency and communication between the parties
- Reduced time and expense in the future in the event of a divorce
Primary differences between a prenup vs postnup
While there are many similarities, there are a number of differences between prenups and postnups to be aware of as well:
| Differences | Prenup | Postnup |
| Timing | Must be executed prior to the date of marriage | Must be executed after the date of marriage |
| Legal recognition | Recognized in all 50 states | After the State of Ohio recently passed legislation permitting postnuptial agreements, Iowa remains the only state that hesitates to recognize the existence of postnups |
| Negotiation considerations | Often take less time to negotiate | May sometimes take more time to negotiate after the couple’s assets are already combined, as there are additional financial considerations to take into account |
| Cost | Because postnups frequently require more time to negotiate and finalize, prenups may be less costly | May cost more because it often takes more time to sort through combined finances and ensure that the agreement complies with more stringent requirements |
| Enforceability | Generally more likely to be found enforceable due to lower risk of unequal power and bargaining positions | Generally subject to greater scrutiny due to higher risk of unequal power and bargaining positions |
The exact differences between prenups and postnups may vary widely from state to state. For more detailed and specific information, check the local rules in your particular jurisdiction.
Prenup vs postnup: Which to use
The decision of whether to use a prenup or a postnup is unique for each marriage. However, here are a few examples of when you might consider using one over the other.
When to get a prenup
A prenup might be worth considering when you or your partner aren’t yet married and:
- Currently have significant pre-marital assets or family inheritance rights that you want to protect
- Want to clarify certain expectations regarding your respective financial rights and duties prior to getting married
- Have significant debts or liabilities that you want to keep separate
- Have existing business ownership rights and interests that you want to protect
When to get a postnup
Alternatively, you might consider a postnuptial agreement if:
- You and your spouse are already married and want to protect your financial interests
- You or your spouse have acquired significant new assets or inheritance rights since the date of your marriage
- There have been instances of infidelity or financial mismanagement that you want to address
- You want to revoke or amend a previous prenup that was executed between you and your spouse
Do I need an attorney to create a valid prenup or postnup?
In most scenarios, there’s no legal requirement that either party must hire an attorney to create a prenup or postnup. However, in many cases, doing so may be beneficial.
For example, an attorney may provide an advantage by:
- Providing legal experience in family law and agreement drafting
- Helping you understand state-specific rules and considerations
- Explaining the pros and cons of a prenuptial or postnuptial and advising you on which might be a better option for your situation
- Ensuring compliance with applicable legal requirements
- Reducing the time and effort needed to draft and execute the final agreement
- Negotiating key provisions with your partner or their legal counsel
- Providing you with independent legal counsel and reducing the likelihood of any power disparities between you and your partner
When to speak with an attorney
Prenups and postnups are binding legal contracts that may have significant future implications on your relationship. Whichever option you choose, it’s important to take steps to ensure that your agreement is comprehensive and legally sound. For many, that includes working with an attorney.
Additionally, an experienced family lawyer might be especially helpful when you or your partner have significant assets or debts or if your partner is already represented by legal counsel.
Sofie is a writer. She lives in Brooklyn.
