As anyone who has ever filed for a marriage license knows, marriage is more than holy matrimony; it’s a legal partnership between two people, and legal partnerships are not always romantic. We know that it’s hard to feel the love when you and your partner are sitting with two opposing lawyers. But as cold as it may feel, it could be a necessary step in securing your marriage and your safety. Understand more in this guide to the difference between a prenuptial and postnuptial agreement.
What Is a Prenuptial Agreement?
A prenuptial agreement is simply an agreement that you and your spouse will draft and sign prior to your wedding. Such agreements will address the division of assets should the marriage end in divorce, as well as waiving claims to inheritances that may arise during the marriage. Think of a prenuptial agreement as preparation for a worst-case scenario; it’s the proverbial “backup drive of the backup drive,” or the safety net.
These documents are not without controversy. Many couples are apprehensive about signing prenuptial agreements because they can feel like an acknowledgment that the marriage is ultimately doomed to fail—after all, now that you’ve found the love of your life, what could possibly go wrong?
But prenuptial agreements don’t simply account for the possibility of divorce. They also address what should happen in the event of an untimely death in the marriage. This, too, can concern inheritance claims, as well as child custody, particularly as it pertains to children from a previous marriage.
What Is a Postnuptial Agreement?
Switching some prefixes around, a postnuptial agreement is one that is signed anytime after a couple has made their marriage official. Some couples may not be able to afford the legal fees at the same time that they were planning their wedding, or they may have felt that such a matter was not only unromantic but anti-romantic and the wrong thing to do in the run-up to their big day.
In spite of these issues, the documents themselves are remarkably similar. A postnuptial agreement is functionally no different from its prenuptial counterpart, save for the moment it was signed. Think of it as a prenup that showed up late to work.
What, then, would be the penalties of a postnup? In some respects, there is no time sensitivity to the agreement, and a postnuptial agreement will be just as valid in protecting assets. However, a lot changes after a wedding, financially speaking. Once a couple is married, it can be difficult to determine what is and is not shared property—that is to say, income and assets earned after the marriage that would be equally divided. Such assets between marriage and a postnuptial agreement could be impossible for one side or the other to claim in full and would have to be divided evenly between partners.
Which Is Right?
So, knowing now the difference between a prenuptial and postnuptial agreement, which is right for your partnership? As fraught with tension as sitting down to draw up and sign a prenuptial agreement may be, if you feel that you have assets to protect and a future to think about, it is best to sign the papers before marriage. Reserve postnuptial agreements for instances in which there’s a significant change to your assets, or if the marriage situation has quickly become untenable and you need to claim what you can before divorce. As domestic violence lawyers in the Chicago area, Schiller DuCanto & Fleck can intervene in cases involving domestic abuse by drafting postnuptial documents that lay the groundwork for a safe and manageable exit from marriage.