Prenuptial after Marriage/Postnuptial Agreement

A postnuptial agreement could be considered a prenuptial after marriage. And like a prenuptial agreement, it's a legal contract between spouses that protects their individual interests. However, the agreement is made after the wedding. These contracts are also referred to as postmarital agreements, post marriage agreements, or marriage agreements.

When to consider a prenuptial after marriage/postnuptial agreement

Postnuptial agreements are growing in popularity because they can fit many circumstances:

• If spouses failed to create a prenuptial but want to protect their assets
• If a spouse wants to allocate funds to a child from a former marriage
• If a spouse had a change in financial status (received an inheritance, changed careers, or had a change in investment assets)
• If spouses disagree about finances and seek a resolution
• If one or both spouses started a business after the wedding

The postnuptial agreement's positive influence on marriage

Over the course of a marriage, it is not uncommon for spouses to face the sorts of unanticipated situations mentioned above. Unaddressed, these issues have the potential to become contentious and seriously damaging to a marriage. A postnuptial agreement can ease tension between spouses by putting down in writing a couple's rights and obligations to each other. Although most often used to settle financial matters, postnuptial agreements can also spell out terms regarding household responsibilities or child-rearing issues, such as choice of school or religion.

Many couples negotiate postnuptial agreements in hopes of averting divorce, and this contractual re-commitment to the marriage is surprisingly effective. The process can prompt behavioral changes, re-balance power dynamics, and foster greater individual responsibility, all of which have the potential to make the relationship more satisfying and sustainable.

Challenges in enforcing a prenuptial after marriage/postnuptial agreement

Until recently, a husband and wife were considered one party by the courts. Since a contract can't be made within one legal entity, postnuptial agreements weren't considered valid. Yet, as more and more couples enter postnuptial agreements, more judges seem willing to accept them.

Certain conditions must be met before a judge will consider a postnuptial agreement valid. The contract must be created with full disclosure of assets, be entered voluntarily by both parties, and have terms that are fair and equitable. However, even if these conditions are met in a postnuptial agreement, a judge can refuse to enforce it.

If you seek a prenuptial after marriage/postnuptial agreement

If you plan to draft a postnuptial agreement, it's vital that both you and your spouse retain your own separate lawyer. This ensures that the agreement honors the rights and interest of both of you. Additionally, courts generally look more favorably on postnuptial agreements that have independent legal counsel for both spouses.

Additional resources:

American Bar Association, General Practice, Solo and Small Firm Division: Prenuptial and Postnuptial Agreements
About.com: Postnuptial Agreements
The Boston Globe: Sealing a contract after the marriage
Prenuptial Agreements
Prenuptial Cost
Cons of Prenuptial