Prenuptial and Postnuptial Agreements: A Guide for Couples

While many are familiar with the statistic that some 50 percent of first marriages end in divorce, you may not know that the divorce rate of second and third marriages is even higher. It is reported that 67 percent of second marriages and 73 percent of third marriages end in divorce.

These statistics highlight why it makes sense for a couple to come to an agreement and sign a contract that protects their financial interests in the event of a divorce. Prenuptial and postnuptial agreements are both legally binding contracts addressing the division of marital assets if the couple divorces or one of them dies. 

If you are considering a prenuptial or postnuptial agreement, we suggest you meet with a member of our legal team. A family law lawyer can explain your legal rights, answer any questions you have, and draft a document to protect your financial assets. Call Brown Family Law today at 801-685-9999 to schedule a consultation. 

What Is a Prenuptial Agreement?

A prenuptial agreement is a legally binding written contract created by a couple before marriage. A prenup is sometimes referred to as a marital contract. Prenuptial agreements can clarify your financial rights and protect you from debt. These may also outline how property will be divided in the case of divorce or death. 

One of the benefits of a prenup is that it encourages couples to discuss serious financial matters before getting married. This can limit future misunderstandings. 

Prenuptial agreements require both parties to be honest about their spending habits. Additionally, they must openly discuss any accrued credit card debt and how they want certain assets divided.

If one of the partners is worried the other wants to get married to gain financial resources, a prenup agreement can help to alleviate that concern. Signing a prenup can help you and your future spouse start off your marriage with trust and transparency. 

How to Bring Up the Subject of a Prenuptial Agreement

The last thing you may want to think about as your marriage date approaches is divorce and the dividing of assets. It is true that prenuptial agreements are far from romantic. However, neither is paying rent, getting life insurance, or filing taxes. Yet, we perform these duties to financially protect both us and the people we love.

Bringing up the subject of a prenuptial marital agreement with your partner may be uncomfortable. However, it could save emotional stress and protect your financial future if you decide to divorce. 

Consider these suggestions on how to navigate the initial discussion of a prenuptial agreement.

Don’t wait till the last minute

Do not wait until a few weeks or days before your wedding to discuss a prenup. Have the conversation early in your engagement or even while you are still dating. 

A premarital agreement is a delicate matter and your future spouse may need some time to process the idea of it. Additionally, bringing up the topic months in advance allows you both time to agree on the terms of the document and finalize the details. 

Highlight the benefits of the agreement

If your partner immediately gets upset when you bring up the subject of a prenup, do not try to pressure him or her into signing one. Pressure can put your future mate on the defensive. Your intentions may be questioned. 

Instead, highlight how a prenup will benefit both of you. You could explain how a marital agreement is like life insurance, that you are simply preparing for a “what if” scenario. 

Sometimes prenuptial agreements are more beneficial to the spouse who earns less income. This is because it may give him or her some financial security in the event of a divorce. 

Suggest a collaboration

Do not have the terms of the prenuptial agreement written out and just expect your mate to sign the paperwork. Doing so can make your partner feel like his or her opinion does not matter to you. 

It is better to suggest a collaboration and work on drafting the document together. Listen to your partner’s concerns. Be sure to take his or her considerations and suggestions in mind. Work to be fair and reasonable throughout the process.

Do You Need a Lawyer to Draft a Prenuptial Agreement?

While it is possible for you and your partner to draft a prenuptial agreement on your own, it may not be in your best interests. Remember, a prenuptial agreement could be invalid if a court determines that certain requirements are not met. 

Some states have complicated requirements for prenuptial agreements. In the event of a divorce, a judge will examine the marital agreement and determine if it is fair to both parties. 

When seeking legal representation, each spouse must have separate attorneys. One family law attorney cannot represent both parties. It would be unethical and a conflict of interest.

Reasons to Get a Prenuptial Agreement

You may be wondering if you need to go through the work of getting a prenuptial agreement. It is true that prenup agreements may not be for everyone. 

If any of the following scenarios apply to you and your future spouse, it would be wise to discuss a premarital agreement:

  • You have minor children from a previous relationship: A prenuptial agreement can be drafted to preserve future income and property for your children. This gives parents and their children peace of mind knowing their inheritance or financial support will not be caught up in a divorce. 
  • One partner has a higher income: Mates that make a lot more than their spouses in a marriage may be required to pay financial support to their ex-partner. Generally, the longer you are married, and the more income you earn, the greater your risk for high alimony payments. 
  • One of you owns a business: Even if you started your business before your marriage, your spouse could be entitled to half of the appreciation of the value your business experiences during your marriage. If it is a family business, you also risk hurting your family members financially by failing to prepare and sign a prenuptial agreement. 
  • Your fiance has a lot of debt: Prenuptial agreements also cover how to divide your debts in the event your marriage ends. Clarifying who is responsible for debts in the premarital agreement is a good way to protect yourself. 
  • You have substantial assets: What if you or your future spouse have a lot of financial assets? A prenuptial agreement can make sure those assets remain separate from the marital estate. Assets included in the prenup may include cars, boats, homes, 401k accounts, stock holdings, and more. 

What Is a Postnuptial Agreement?

Postnuptial agreements are written contracts that married couples create and sign together. While a prenup is an agreement formed before marriage, a postnuptial agreement is signed after marriage. The primary difference between a prenuptial and a postnuptial agreement is when it was signed. 

As with a prenup, a postnuptial agreement can provide a detailed plan of property division. It also outlines how the dividing of assets will be handled if your marriage ends. 

One issue with the absence of a prenup agreement is that many assets become “marital property” as soon as the marriage is legal. However, a postnuptial agreement will specify how assets will be divided if the marriage ends. 

As with a prenup, a postnuptial agreement can determine:

  • Distinctions between personal and marital assets
  • Protection against debt
  • Terms of alimony payments
  • Rights to life insurance policy benefits
  • Clarification about which state law governs the agreement
  • Provisions for children from a previous relationship
  • Details of each mate’s financial responsibility

When to Get a Postnuptial Agreement

A couple does not always decide to sign a postnuptial agreement immediately after marriage. Some couples choose to sign a postnuptial agreement several years or even decades into a marriage. 

One reason couples decide on a postnuptial agreement is to address concerns raised by a significant change in one spouse’s financial situation. For instance, a family member passes away and one partner receives a large inheritance. 

Another reason for a postnuptial agreement is because a spouse has found out something about the other spouse’s financial situation, which was unknown before marriage. For example, it may come to light that one spouse has a large amount of debt. 

Conditions That Could Make a Prenuptial or Postnuptial Divorce Agreement Invalid

Even if a prenuptial and postnuptial divorce agreement meets all the legal requirements to be considered valid, there are still reasons why such an agreement may not be enforceable by the courts. 

The following scenarios may mean that a prenuptial or postnuptial agreement may not be upheld by the court:

  • The agreement is “unconscionable”: The terms of the legal agreement are grossly unfair to one of the parties involved. 
    • One or both parties lacked adequate time to read and evaluate the agreement: Both parties should carefully read and fully understand the terms of the prenuptial or postnuptial agreement. They must do so before signing for it to be upheld. 
  • A spouse was pressured or coerced into signing: One party signed the document involuntarily or while under duress. 
  • A spouse did not disclose important information: One spouse did not divulge assets or debts before the agreement was signed. 
  • The agreement was not in writing: Oral postnuptial or prenuptial agreements are invalid. Agreements must be in writing.
  • The agreement was improperly executed: In order to be considered valid, prenuptial and postnuptial agreements must be properly filed, notarized, and meet other legal requirements. 

What Cannot Be Included in Prenuptial or Postnuptial Agreements?

State laws dictate what can and cannot be included in marital agreements. The following are some things that many states do not allow in a prenuptial or postnuptial agreement:

  • Provisions on anything illegal: All states prohibit anything illegal from being included in the marital agreement. 
  • Decisions regarding child support or child custody: A pre- or postnuptial agreement cannot include child custody or child support issues. The court will make a ruling on these arrangements based on what is in the best interest of the child – not primarily based on what a prenup says. 
  • Waiver to rights of alimony: This is one of the most commonly struck down provisions by courts. In your state, it may not be permitted for one spouse to give up his or her alimony rights completely. 
  • Financial incentives for divorce: When judges review prenuptial marital agreements, they look for anything that offers financial rewards for a divorce. If any provision in the contract is thought to be encouraging divorce, it may be set aside by the court. 
  • Information about personal matters: Prenuptial agreements are made to address financial matters. They cannot include personal preferences such as who has what chores, where to spend the holidays, or what schools the children will attend.

What Is a Sunset Clause?

A sunset clause specifies the “expiration date” of your prenuptial agreement. This means the prenup will no longer be valid after you have been married for a certain number of years. For example, a simple sunset clause might state the prenuptial agreement will expire after the couple has been married for 15 years. 

The reasons for a sunset clause are unique to each couple. Some couples may think that their financial earnings will equal out over time, making a prenuptial agreement unnecessary. For others, a prenup is tied to a temporary situation with a known end date. 

There are reasons why a sunset clause may not be a good idea. It can create unnecessary anxiety and uncertainty about the future of your marriage. 

If you have a sunset clause, all or part of the prenuptial agreement may be rendered invalid when the clause goes into effect. This removes all the carefully planned financial protections you put into place when creating the martial agreement. 

Prenuptial Marital Agreements and a Spouse’s Death

A married couple may have questions regarding whether a prenuptial or postnuptial agreement is upheld in the event of one spouse’s death. Each state has its own laws about estate planning and how property and assets are divided when a spouse passes away. 

Generally speaking, a will controls the dividing of assets when a spouse dies. In other words, if a prenuptial or postnuptial agreement grants certain assets to the surviving spouse, but the will grants these assets to someone else, the will invalidates the marital agreement. 

It is recommended that you consult with a family law attorney before signing any documents. He or she can explain how the terms of the prenuptial agreement will apply if you or your spouse dies. 

Why Hire a Family Law Lawyer

Although you may not be legally required to have a lawyer write up your prenuptial or postnuptial agreement, it is not advisable to proceed without proper counseling. Consider the following benefits of having a family law attorney help with your prenup. 

Ensure all conditions are met

In order for a prenuptial or postnuptial agreement to be enforceable, certain conditions must be met. Laws regarding marital contracts can vary depending on your state of residence. An experienced family lawyer will have knowledge of the state’s laws. 

Knowledgeable lawyers will be aware of the conditions that could make a prenup invalid. They can help you construct an agreement that says what you want while still meeting state requirements. 

Give you peace of mind

You do not want to sign and agree to something if you do not fully understand what you are signing. When you work with an attorney, though, you can rest assured he or she will make sure you completely understand the terms of the prenuptial or postnuptial agreement. 

Your lawyer will also make sure that the terms of the agreement are fair. You can have the peace of mind that comes from knowing you will not be financially taken advantage of in the event of a divorce.

Tailor the agreement to your needs

Every couple’s financial situation is unique. A family law attorney can help tailor the prenuptial or postnuptial agreement to your specific circumstances. 

You may own a business, expect a future inheritance, own substantial assets, or have children from a previous marriage to care for financially. A lawyer will ensure that the agreement accurately details all your intentions. 

Avoid future legal and financial issues

Courts are more cautious about approving a prenuptial agreement signed by a party who was not legally represented. This is especially true when the document appears one-sided or the evidence suggests fraud or coercion. 

Judges are more likely to view a marital agreement as enforceable when both parties have retained their own divorce attorneys. Courts are less likely to hold up proceedings with questions and concerns when legal representation is evident. 

Schedule a Consultation With a Family Law Attorney Today

It is important to gather information concerning prenuptial and postnuptial agreements before deciding whether or not you need one, so come talk to us. An attorney from Brown Family Law can address your specific concerns, interests, and priorities. 

The thought of getting a prenup can be overwhelming. Your lawyer will help you through each step of drafting the document. He or she will ensure that the agreement is fair, legal, and valid under state law. 

Our goal is to remove the fear associated with the divorce process by protecting your money. Schedule a consultation today. Call us 24/7 at 801-685-9999 to speak to a live representative. 


Published On: October 13th, 2023Categories: Division of PropertyComments Off on Prenuptial and Postnuptial Agreements: A Guide for Couples
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About the Author: Marco Brown
Marco C. Brown was named Utah’s Outstanding Family Law Lawyer of the Year in 2015. He graduated with distinction from the University of Nebraska College of Law in 2007 and is currently the managing partner of Brown Family Law, LLC.
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