Prenuptial and Postnuptial Agreements

The following worksheets are taken from my book, "Prenups and the Elephant in the Room: A Handbook for the Prenup Process."

• Platinum Checklist
• Appendix C: Sample Financial Statement
• Appendix D: Goals
• Appendix E: Prenup Checklist

A prenuptial (“prenup”) is a private agreement between a couple contemplating marriage. The couple arranges, in advance, financial matters in the event of divorce or death, such as student or business loans, credit card debt, and support obligations. A prenup may also include lifestyle or nonfinancial topics as well.

A postnuptial agreement (“postnup”) is a private agreement a couple enters into after marriage. The postnuptial agreement covers the parties’ wishes related to divorce, the death of a spouse, finances, and lifestyle topics. A postnup is “designed to protect and further an ongoing, viable marriage.”

A prenup may be regarded as a positive way to establish communication about money and other matters in a relationship. It is an opportunity for a couple to create understanding about lifestyle choices.

A prenup should be fair to each partner and should suit your individual needs. In the event of a divorce, you and your partner minimize the chance for adversarial proceedings or a long and painful court battle since your wishes will already be made clear in the agreement.

Hopefully you and your partner had an opportunity to discuss the prenup before you’re asked to sign. Whatever the case may be, it is important to take the time to not only review the agreement yourself, but have your attorney review it as well. Having an attorney provide input on what can and should go into the document will help ensure that you are protected. No matter the scenario, an agreement should never be rushed into or signed in the “spur of the moment” without adequate time to review and potentially modify it.

People begin the prenup process for a variety of reasons, so it is important to keep an open mind when approaching the agreement and initially reviewing it. Make sure to read it carefully and if you aren’t comfortable with it or any part of it, you may look to modify it or not sign it at all. It is important to start a marriage feeling like an equal partner.

Ideally, a prenup should be made well in advance of the wedding in order to allow time to properly review finances and other information carefully and also to avoid the stress of trying to reach an agreement shortly before the wedding. When individuals try to challenge the validity of a prenup during the divorce process, the court will normally look to how soon before the wedding the prenup was made as a factor in its determination; in certain cases, having the prenup signed a short time before the wedding has affected the agreement’s enforceability.

Similar to prenups, the “right” time is different for every couple. It is common for postnups to be made when there is some sort of major change in finances or in the marriage or when there is a desire to clarify the status of property acquired before the marriage. For example, it can be used to identify property ownership when one spouse wishes to use an inheritance or separate property acquired before marriage for the purchase of marital property. It can also be used to clarify what will happen to certain assets in the event of divorce without proceeding to divorce. Postnups do not have to be solely in contemplation of divorce and can actually be used as a tool for future estate planning.

Again like prenups, postnups can involve more than just financial issues and can bring in all areas of the marriage including visits with in-laws and even household chores and responsibilities. In this sense, the postnup can be used as a way to revive a marriage and allow the spouses to work together to build a healthy relationship.

Allow sufficient time for disclosure of assets, liabilities, and income. Be open and honest when communicating with your partner about your needs. Do not rush into a prenup and make sure you think through all the important issues that need to be addressed.

Open a dialogue with your partner and express your thoughts on why a prenup would be mutually beneficial in your relationship. If you and your partner can communicate openly and honestly about what issues are important to you, the bulk of the process is already done. Once you have had the initial discussions with your partner, a meeting with your attorney can help clear up any questions or concerns, as well as get the agreement drafted.

Yes, but certain formalities must be followed depending on what state you live in. “It’s a good idea to provide in your prenup that it can be amended or terminated only in a prescribed manner. When you modify your prenup, it’s also a good idea to recite that you intend to change or terminate the original agreement.”

It is advisable to review your prenup as you grow in your marriage and as circumstances materially change.

If your spouse is willing, you may be able to enter into an amendment to the agreement. It is recommended that you carefully consider your situation with an experienced professional and have adequate financial disclosure to ensure you are protected.

A prenup can be invalid if it is manifestly unfair or requires you or your partner to violate public policy or conduct criminal activity. A prenup “may not adversely affect the right of a child to child support, child custody, or visitation.”

The cost of entering into a prenuptial agreement can range in price depending upon the complexity of the issues. Your attorney should be able to provide an estimate once you provide a description of your situation.