Marriage isn’t only an emotional relationship — it’s also a financial partnership. Prenuptial and postnuptial agreements are two types of contracts a couple may enter into to help ensure each understands their financial responsibilities during the marriage and their assets are protected in the event of divorce. When determining whether to use prenuptial vs. postnuptial agreements, it’s important to know the difference between these types of contracts and understand what they can accomplish.

What is a Prenuptial Agreement?

A prenuptial agreement, also referred to as a “prenup,” is a contract entered into between parties who are soon to be married. It is a tool that can be used for financial planning during the marriage and to determine how property, assets, and debts would be divided in divorce. In order to be a valid and enforceable contract, a prenup must meet certain requirements.

To hold up in court, a prenup must be:

• In writing
• Signed by both parties
• Entered into voluntarily
• Fair to both parties

Full financial disclosure must be made before a prenup is signed and each spouse must have had the opportunity to consult with their own attorney. If the agreement is unconscionable, not executed properly, signed under duress, or incomplete financial information was provided, the prenup may be struck down by a judge and rendered unenforceable.

What is a Postnuptial Agreement?

A postnuptial agreement, commonly referred to as a “postnup,” is essentially the same as a prenuptial agreement. The same criteria for enforceability must be met — and it can also simplify asset division during divorce. However, there is one major distinction between a prenuptial vs. a postnuptial agreement. A prenup can only be entered into before the date of the marriage, while a postnup can be entered into at any point during the marriage.

What Can a Prenuptial vs. Postnuptial Agreement Cover?

When determining whether you should ask your spouse to sign a prenuptial vs. postnuptial agreement, it’s essential to understand what each contract can accomplish. Prenups and postnups can both cover similar issues. Each type of agreement can provide a framework for how financial matters would be determined in divorce and outline each spouse’s financial expectations for the marriage. Both prenups and postnups can:

• Define separate and marital property — Prenups and postnups can each define how property should be characterized.
• Protect separate property — Both types of agreements can protect separate property from being commingled with marital assets, including inheritances, business interests, and real estate.
• Decide how property would be divided in divorce — Prenups and postnups can define what is considered marital property and determine how these assets are divided between the spouses in divorce.
• Establish spousal support — Either a prenuptial or postnuptial agreement can establish the terms of spousal support in the event of divorce.
• Determine how debts are allocated — Prenups and postnups can outline who is responsible for what debts.
• Outline how household expenses will be paid — A prenup or postnup can outline each spouse’s financial obligations during the marriage.

In addition to serving as a safeguard in the event of divorce, prenups and postnups can also be used in connection with estate planning. If you have children from a previous marriage, these agreements can help ensure their inheritances are protected when you pass away.

What Can’t a Prenup or Postnup Cover?

While prenups and postnups can cover a wide range of issues, there are certain things they cannot decide. Significantly, prenuptial and postnuptial agreements cannot determine child support or child custody matters. They also cannot contain any provisions that are illegal or in violation of public policy.

Is it Better to Enter into a Prenuptial vs. Postnuptial Agreement?

Since they serve the same purpose, neither a prenup nor a postnup is necessarily better. Both types of agreements can be tailored to your specific circumstances. One of the advantages of signing a prenup is that it can ensure your finances are protected from the very beginning of the marriage. However, if you did not execute a prenup, a postnup can give you a second chance to safeguard your assets.

A couple who did not enter into a prenup might choose to enter into a postnup for a variety of reasons. If the marriage is not working out and the spouses know they will soon be parting ways, a postnup can help resolve the financial matters that need to be decided before emotions run high. This can save the parties time and money that would otherwise be spent litigating these issues during divorce proceedings.

Another reason to execute a postnup is if a change in financial circumstances occurred during the marriage. For instance, one spouse may have inherited a significant sum of money that they wish to protect, acquired real estate, or started a business. A postnup can provide an opportunity to address new assets that were acquired during the course of the marriage and characterize them as separate property.

Contact an Experienced New York Divorce Attorney

If you would like to learn more about prenuptial vs. postnuptial agreements and how they can help you protect your assets in the event of divorce, it’s best to consult with a knowledgeable attorney. At Duke Law Firm, P.C., we provide counsel for a wide range of matrimonial matters, including drafting, negotiating, and litigating prenups and postnups. Offering customized solutions and high-quality legal services in every case, we welcome you to contact us today to schedule a consultation to learn how we can help.