A postnuptial agreement is a contract between two married parties that dictates the allocation of marital property in the event of a divorce or death. It’s similar to the familiar prenuptial agreement and has many of the same properties. If you don’t have time to set a contract prior to your wedding, for most situations a postnup is as good as a prenup.

Just like a prenup, there are many reasons to get a postnup. A postnup works almost the same as a prenup, too, so the process isn’t much different other than the timing. 

To be legally binding, a postnup generally has to:

• Be entered voluntarily by both parties
• Have full and fair disclosure of all relevant information
• Terms must be fair to both parties
• Be in writing and signed by both parties

A postnuptial agreement is a great way to have clear communication between parties when big life events happen—such as an inheritance or starting a business—and can also lessen financial strife if a divorce occurs. 

One thing to keep in mind: like prenups, postnuptial agreements cannot cover child custody issues. They focus only on allocating marital assets and property due to divorce or death.

Prenup vs. Postnup

While these two agreements both deal with allocating assets in the event of a divorce, there are a few key differences. The biggest difference between a prenup and postnup is how they’re dealt with by the courts.

The Legal Difference Between a Prenup and Postnup

The biggest difference between the two is what is known as consideration, which is a legal term for what each spouse receives in exchange for signing the agreement. 

With a prenup, the marriage itself is the consideration: you’re both giving up certain rights in anticipation of getting married. That is enough on its own to make the agreement valid.

In a postnup, you’re already married, so the marriage can no longer serve as the consideration. Indiana courts require something else in its place, such as a couple that agrees to reconcile rather than divorce, or both spouses mutually giving up certain property rights.

Will a Postnup Hold up in Court?

Postnuptial agreements are challenged in courts more often than prenups, but if done correctly, they hold up. This is because once you’re married, the reasons for entering a legal agreement have a higher potential for being unethical than before you’re wed. Think about it this way: if one party or the other disagrees with the conditions of a prenup, they have the option to postpone or call off the wedding. 

In a postnup, you’re already married, so the stakes are higher. For example, one party might try to coerce the other into staying in a failing marriage. Or maybe they’re trying to punish a spouse for a perceived wrong. Either way, there’s more for a judge to consider about how a couple will divide their assets once they’ve already been married.

Other reasons a judge can invalidate a postnup include:

• There are provisions for child support or custody
• The conditions would render one spouse dependent on the state
• There’s evidence the agreement was coerced
• One or both spouses were not honest about financial information

Do You Need a Lawyer for a Postnup?

The short answer is no, you don’t need a lawyer for a postnup. However, not using one increases the likelihood that your postnup will not hold up in court. And like a prenup, you and your spouse must use different lawyers to avoid a conflict of interest.

No matter the reason you’re getting a postnup, keep in mind many things become common assets after a couple is married. If you can, it’s generally smarter to draft up a legal document before your wedding rather than after. 

How Long After Marriage Can You Get a Postnuptial Agreement?

While a prenup has a set deadline—your wedding day—a postnup doesn’t have to be done at a certain time. You can sign a postnup the day after your wedding all the way until your marriage is at an end; whether through divorce proceedings or natural causes.

You can also have more than one postnup, unlike a prenup. This allows a postnup to help you navigate big life events as they happen, such as:

• One spouse starts a business and wants it separate from the marriage
• Either spouse receives a large inheritance or family asset
• Dictating the repayment of a gift given to the couple such as a down payment on a home
• Estate planning, especially if a spouse has children from a previous relationship

Some of these instances may happen more than once within a marriage, such as an inheritance. Having multiple postnups can help keep all your legal housekeeping in order. 

How Much is a Postnup?

The cost of hiring a postnup lawyer to draft and file your paperwork can vary based on your marital assets, such as:

• The amount of financial assets involved
• The value of any real estate or other required property division
• Whether spousal support needs to be determined

It is recommended both parties hire their own representatives. This gives you the best chance of your postnup holding up in court, but also gives you less chance of being taken advantage of. 

Every marriage is unique, but the bottom line is we’re here to help you keep your legal affairs in order. We’ll talk about the details of your assets and discuss what the best course of action is. You can contact us at any time and we’ll get back to you as fast as possible. 

Disclaimer:

The content of this blog is intended to be general and informational in nature. It is advertising material and is not intended to be, nor is it, legal advice to or for any particular person, case, or circumstance. Each situation is different, and you should consult an attorney if you have any questions about your situation.