Differences Between a Postnuptial vs. Prenuptial Agreement

No one wants to imagine that their marriage is going to end in divorce, but if a couple has complicated financial lives, including real estate or business holdings, coming up with a plan for what happens to those assets before they’re in the midst of the emotions of a divorce can be a sensible course of action. Generally, marriage is considered a financial partnership in addition to a romantic one, and in California, assets that are acquired during the marriage are considered “community property” and are divided evenly between spouses if there is a divorce. People who aren’t married and have no plans to get married can also enter into co-habitation agreements. Both a prenuptial agreement and a postnuptial agreement is a way for people who are engaged or who are already married to memorialize an agreement about what they intend to do with their finances. But what is the difference between a postnuptial agreement vs. prenuptial agreement?

The Main Difference Between Postnuptial and Prenuptial Agreements

As the name implies, a prenuptial agreement is made before the marriage (“pre-” signals it’s before; it can also be referred to as an "antenuptial" or “pre-marital” agreement), and a postnuptial agreement is a document that’s executed after the couple is already married. A postnuptial agreement can be made at any point during the marriage, whether a couple has been married for a single day or a decade, while a prenuptial agreement can only be made before the couple is legally married. While the timing is the most basic difference, there are also differences in the legal standards for what will be considered enforceable or unenforceable.

The Primary Law Governing Prenuptial and Postnuptial Agreements

Twenty-eight states, including California, have adopted a law called the Uniform Pre-Marital and Marital Agreement Act (UPMAA), which lays out specific requirements that must be met by both types of marital agreements. Those requirements include:

• The prenuptial or postnuptial agreement was voluntarily executed by the parties. Neither one can be under any sort of duress or pressure from the other to agree.
• The prenuptial or post-nuptial agreement includes fair, reasonable, and full disclosure of the properties and debts of the other party. If the other party later proves that they didn’t receive a fair accounting of the assets, that can be grounds to invalidate a marital agreement.
• Both parties are represented by lawyers or have expressly waived the right to be. Courts will look very carefully at situations where one spouse’s lawyer drafted the agreement and the other spouse signed it without receiving any individual legal counsel of their own. Though it’s not an absolute requirement, the spouse without a lawyer has to sign a clear statement of their intent to forgo getting a lawyer, and must have been advised of their right to do so. Courts generally will not uphold waivers of spousal support in situations where the spouse waiving their right to spousal support didn’t have their own lawyer, as spousal support is considered a very basic right in a divorce proceeding.
• That each party had no less than seven days to consider the pre-nuptial agreement before signing it. In television and movies, one party is usually asked to sign a marital agreement moments after seeing it. But that’s not allowed under the law, and one party can’t present either the prenuptial or postnuptial agreement to their prospective spouse or spouse and have them sign it right then and there. The law requires them to get a full week to think it through.

Additional Requirements and Differences Between a Postnuptial Agreement vs. Prenuptial Agreement

In addition to needing to meet the requirements of the UPMAA, a post-nuptial agreement has some additional considerations. When parties are entering into a prenuptial agreement, they have no special obligation to one another yet, but in a postnuptial agreement, they are already spouses and thus already owe one another a duty of care. Postnuptial agreements are thus more closely scrutinized by the court, and must clearly demonstrate that the spouses were dealing with one another in the utmost good faith and not trying to hide assets or debts. In the prenuptial context, one spouse can always just walk away from the marriage if they truly can’t live with the terms of the proposed prenuptial agreement. In the postnuptial context, it’s much more difficult for spouses to extract themselves from that situation, particularly if one spouse is financially dependent for his or her day-to-day survival on the spouse who is looking for the post-nup. So while both types of agreements will be set aside by the court if they’re clearly involuntary or the terms are unconscionable, a postnuptial agreement has an even higher standard of fair dealing and disclosure than a prenuptial agreement does.

Protect Your Future With Our Family Lawyers

Whether you’re considering a postnuptial agreement vs. prenuptial agreement, we are here to help. Our experienced family lawyers at ADZ Law understand how tough these decisions are and will guide you through every step. If you’re ready to talk about your options, call 650-458-2300 to contact ADZ Law today for a confidential consultation.