Prenuptial agreements and post nuptial agreements are both contracts that deal with things like alimony and property division if the couple divorces. Most people are familiar with a prenuptial agreement, which is entered into before a couple marries. The less familiar but sometimes quite beneficial post nuptial agreement is entered into after a couple is already married.
Why would a married couple, especially where neither contemplates divorce, want to go through the time, effort and expense to do a post-nup?
- For whatever reason they didn’t do a prenuptial agreement although the good reasons for one still exist.
- Because circumstances have changed. One spouse may have gotten an inheritance or had financial success with no contribution from the other. One spouse may have become permanently disabled.
- To deal with issues that threaten the marriage, like spending habits, infidelity, substance abuse, or difficult family members. A post-nup can reduce arguments and friction by setting explicit agreed upon rules and boundaries and divorce consequences for noncompliance.
- To resolve power imbalances that jeopardize the marriage. For example, if one spouse controls the finances, the other spouse might be less fearful if a post-nup provided for a guaranteed property settlement.
- To help a reconciliation, especially if a divorce had already started. The agreement can take away the unknown and the contentiousness about divorce finances so that the couple can deal with relationship issues without distraction.
The law recognizes that it is harder for a married couple to break up than for an unmarried couple. So one spouse may be less able to resist pressure from the other to enter into a post nuptial agreement. For those reasons, enforcement of post-nups is more difficult and even more fact driven than prenuptial agreements. Still, if done properly and in the right situation, a post-nup should be enforceable.