Some couples preparing for divorce experience next to no conflict. They have previously taken the steps necessary to resolve the potential disputes that could derail the divorce process. These couples may already have a marital contract that allows for a relatively simple divorce.
Both prenuptial and postnuptial agreements can strengthen marital relationships and limit the risk of a high-conflict divorce. Most people are at least cursorily familiar with prenuptial agreements. Postnuptial agreements are less common and, therefore, less well-known.
What differentiates between a prenuptial agreement and a postnuptial agreement?
The name indicates the main difference
The main factor that separates a prenuptial agreement from a postnuptial agreement is the timing of establishing the contract between the spouses. As the name implies, a prenuptial agreement is a written document negotiated between engaged individuals before they legally marry. A postnuptial agreement, on the other hand, is a contract that they negotiate after solemnizing their relationship.
The timing of the document’s creation is the main difference between the two instruments. Typically, both types of agreements are subject to the same restrictions and contain the same basic terms.
What should marital contracts include?
Prenuptial or postnuptial agreements typically include information about each spouse’s property and expectations in the event of a divorce. For the agreement to be valid and enforceable, it needs to offer something of valuable consideration to each spouse. The courts may set aside an agreement that only protects one spouse as an unconscionable contract.
Couples may address matters including the designation of certain assets as separate property, the rules for the division of marital property and even terms for financial support in the event of a divorce. These contracts between spouses generally should not include deeply personal details, such as rules about marital intimacy or weight gain. Spouses also have to avoid including overtly illegal provisions, such as a clause waving child support in the event of a divorce.
The best agreements provide protections for both spouses and are the result of mutual informed consent. They are strongest when each spouse has their own attorney review the document and advise them about its contents. The decision to draft a prenuptial or postnuptial agreement can be the result of creating a blended family, concerns about concessions made for the benefit of the marriage and the acquisition of particularly valuable resources during the marriage, such as a sizable inheritance.
Learning more about prenuptial and postnuptial agreements can help fiancés and spouses alike determine if signing a contract might be beneficial for them. Marital agreements can strengthen a relationship and take much of the conflict out of the divorce process as well.