What Are Pre-Nuptial and Post-Nuptial Agreements And Why Would I Need One?

A common misconception about prenuptial and postnuptial agreements is that they are only desired by wealthy, greedy individuals. Truthfully, many couples benefit from having such an agreement in place.

If you find yourself wondering what pre- and postnuptial agreements are, the differences between the two, if you should care, and if you need one, please see below.

What Is A Prenuptial Agreement?

A prenuptial agreement (prenup) is entered into before marriage. It is an outline of how property and finances will be dealt with during your marriage and when the marriage ends, either by divorce or death.

A prenup allows spouses to set out their own rules for dealing with property brought into the marriage, property acquired during the marriage, earnings and other income, support, and responsibility for debts. The prenup can vary terms of state law on these issues. These laws may not be at all what the spouses desire. A key prenup provision is that income on separate property remains separate property rather than being community property.

Before the marriage is the best time to give serious thought to these issues.

When Should You Consider Getting A Prenup?

Here are a few common situations where a prenup is appropriate:

• One or both spouses are bringing substantial property into the marriage
• One spouse is significantly wealthier than the other
• One spouse has a significantly higher income than the other
• It is a second, third or later marriage for either party
• If either spouse carries heavy debts
• You own your own business
• You want to protect a line of family inheritance

Provisions can be drafted to address many, complicated questions surrounding these issues. As a friendly reminder, these are serious issues you and your prospective spouse need time to think about. Your lawyer will also need time to carefully draft the agreement before the wedding day. This is not something that can be accomplished five minutes before you say I Do.

What Is A Postnuptial Agreement?

Even if the time slipped away and you didn't get a prenup drawn up before you exchanged vows, you can still accomplish the same results after the marriage with a postnuptial agreement (postnup). However, if you are the spouse with significantly more assets or earning power, your bargaining position may be weakened after you say "I Do."

A postnup can be drawn up at any time during the marriage. In fact, it can be a tool in an estate planning package.

When Should You Consider Getting A Postnup?

Here are a few common situations where a postnup is appropriate:

• If you intended to sign a prenup but didn't get it done prior to your wedding
• To update a prenup if circumstances have changed substantially during the marriage
• You have accumulated more assets or debts during the marriage than you anticipated and want to make definite arrangements for how to deal with them during the balance of the marriage and at divorce or death
• If one spouse suddenly is faced with having substantial liability imposed on him/her and you want to protect as much of the property as possible
• If you inherit a significant amount during the marriage and you want to protect its separate property character
• If you want to clearly outline for estate planning purposes what is family-inherited separate property and specify that it is to be preserved as separate property
• If you have children by prior marriages, you can vary what they would receive from what state law otherwise provides

If you would like to learn more about prenups and postnups, and whether or not one would be beneficial to you, contact Adair M. Buckner for a free initial consultation*.

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*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)