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Didn’t Get Around To a Prenuptial Agreement? How About a Postnup?

There was a time when the only people who got a prenuptial agreement before they married were people of substantial means and/or people of great popularity. In the past decade, we have seen more people requesting prenuptial agreements than ever.

Couples who did not manage to obtain a prenuptial agreement, are arranging a postnuptial agreement in the early stages of their marriage. This is not about trust or love. It is about business and security. There is a saying, “When you marry someone, you marry the whole family.” A quick search of the internet will show you, there is truth to that saying. How well do you know the family?

Why are things changing?

People are waiting to get married. These are the millennials. They are securing their careers, establishing credit, buying homes, and investing. While they are not financially secure for life yet, they have begun and they have their eye set on the target. Their goals will probably be adjusted so that both spouses can live comfortably while saving the maximum.

By now, they probably have discovered which of the two is the best at saving, watching for sales, and making do, and which spouse runs through the mall, credit card in hand  shouting “CHARGE!” They have lived long enough to have seen marriages that have ended in divorce and the devastation. As much as they love their new spouse, they feel obligated to secure the properties and heirlooms handed down to them for their children.

The difference in a Prenup and a Postnup

By now you understand that a prenup takes place before the wedding and a postnup takes place after the wedding. Either of them need to happen under the eye of an experienced attorney. The reason for this varies. All prenups and postnups are dictated by state laws. The laws are not always the same, and if the wrong state laws are used to draw up your agreement your agreement can be ineffective. This is also a good reason to stay away from “do-it-yourself” internet plans. If your postnuptial agreement is in violation of any of the state laws, the judge may throw it out. Standard things listed in a postnuptial agreement.

There are many things to go over on this agreement. Even if you think your spouse is being fair, all items must be gone over with your attorney. Below are some basic things listed on a postnuptial agreement for a family of upper-middle-class standards.

  • Agreements you have worked out between yourselves before the divorce or separation process and before litigation begins
  • Fairness matters
  • Any plans for one parent to staying home with young children after working to secure financial assets (note: this normally comes up where alimony is a consideration)
  • Children are not part of this – they are hands-off in this deal
  • Inheritance for children from prior relationships including grandparents
  • Simply to clarify how to separate assets
  • Have separate attorneys
  • When one party is financially irresponsible after the marriage

Note: Before the wedding, each spouse should have an inventory taken of what they own, and deeds showing when they got it. If these items are to be kept by one spouse, all monies need to be kept in a private account. Expenses for the properties must come from that account. If the money for upkeep comes from the household money, it can be argued that it then became a household property.

When your postnuptial agreement becomes void

When you have hired an attorney and have legally prepared a detailed postnuptial agreement, there is little cause for concern. But, some people have attempted to go outside the lines only to find out they wasted their time. Here are some examples:

  • Your agreement was oral
    • You go to court and tell the judge that the agreement was spoken and the two of you agreed upon X, Y, Z. The judge has no way to prove that and it will usually (almost always) be thrown out of court.
  • Your spouse agrees that he or she agreed to the oral requirements, but it was out of fear. They felt you were a danger to them or their children, so you said what you wanted to hear. This will not work in court and could result in additional charges.
  • You did not provide full disclosure. You have assets in investments, cash, or property that you did not claim when filling out the paperwork. All property must be counted.

Prenuptial agreement and Postnuptial agreement are part of life. It is a way to feel safe and not to feel like you are trapped if the marriage goes south. It gives everyone a level playing field. You have no reason to think your spouse is using you for money. You can focus on building your lives in other areas and that will ensure you will have a beautiful life.

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