With a projected divorce rate at around 50%, many couples include prenuptial agreements in their marriage discussions. Others may suggest a postnuptial agreement during a marriage. Here, we define these agreements and share their similarities and differences.
A prenuptial or premarital agreement (prenup) is a written contract entered into prior to marriage and containing provisions for property division and spousal support in the event of divorce or marriage breakup. They can also include asset forfeiture based upon specific terms or actions, such as adultery. But they do not regulate issues relating to children. To create a prenuptial agreement, and ensure it is enforceable, both parties should be represented by attorneys.
A prenup as recognized in all 50 states and the District of Columbia must contain the following elements:
1. It is in writing
2. It is executed voluntarily
3. Full and fair disclosure is made at time of execution
4. The agreement cannot be unconscionable (immoral or unprincipled)
5. It must be executed by both parties, not their attorneys, before a notary public
Building provisions into prenuptial agreements to address support for a longer-lasting marriage or acknowledge sacrifice of a career or advancement opportunity to raise children can also mean greater protection in the event of divorce.
A postnuptial agreement (postnup) is a written contract executed after a couple is married to settle affairs and assets in the event of a divorce or separation. They have risen in popularity since the 1970s.
There are essentially three types of postnuptial agreements:
1. Assignation of marital property when one spouse dies
2. Separation agreements
3. Agreements that attempt to affect rights in a future divorce
Sometimes a postnuptial agreement is used to save a troubled marriage, or to set new boundaries for conduct while ensuring that if misconduct (typically infidelity) occurs, moving forward with the separation and divorce is a smoother process. Postnuptial agreements can be amended at a later date if and as needed.
Rich or Poor Benefit
It doesn’t matter whether you are rich or poor; everyone’s situation is fluid and changing. Poor newlyweds may build an entrepreneurial business or be funded by family in their housing or careers, while wealthier couples may need to protect their accumulated wealth and ensure the marriage is founded on love and not money. Creating clear terms for how each spouse will treat these assets can make the difference in preserving the efforts to build the business or the family’s investment in you.
Contact Your Attorney
At the Law Office of Patricia E. Tichenor, P.L.L.C., attorneys Patricia Tichenor and Camellia Safi specialize in family law and estate planning to assist families with family law issues. Call us today to schedule your free initial consultation.