Prenups vs. Postnups: What’s the Difference?

Prenuptial agreements (“prenups”) are a popular tool in California family law because they allow future spouses to establish ground rules before marriage. They offer many benefits, not least of which is that they allow married couples to circumvent California’s default 50/50 property division scheme. But did you know that you can also sign postnuptial agreements (“postnups”) after you are married? If you think either a prenup or postnup might be for you, you should discuss the matter with one of our Stockton prenuptial agreement attorneys. 

The Basics of Prenups 

At a high level, prenups are contracts entered into prior to a marriage that identify each spouse’s separate property and specify how marital property is to be divided upon divorce.  They can be particularly useful tools for high net worth couples, individuals who own businesses, and individuals who have children from previous marriages. While California law allows couples to waive alimony (under certain circumstances), any provisions related to child custody, child support, and visitation are unenforceable. Prenups must be in writing, signed by both parties and entered into freely and voluntarily. 

The Basics of Postnups 

Prenups have many advantages, but they also have a major drawback — depending on how they are drafted, they may not take into account significant post-marriage changes of circumstance. Postnups are very similar to prenups in substance and require many of the same legal formalities, but they are executed after the couple is already married. Couples executing both types of agreements must make a full financial disclosure to each other, but California family law courts may scrutinize financial disclosures for postnups more closely, as married couples owe a fiduciary duty to one another. 

When to Consider Each Type of Agreement

Every couple is different, so there is no right or wrong way to go about executing pre-marital and post-marital agreements, nor is there a “one size fits all” formula for determining what to include and exclude in such agreements. That being said, some marital agreements are more appropriate for some couples than others. 

Generally, you might want to consider a prenup if: 

• You want to keep certain property from becoming part of the marital estate
• You want to protect yourself from your spouse’s debts
• You want to clarify alimony expectations
• You own a business or an interest in a business
• You have children from a previous marriage

On the other hand, you might want to consider a postnup if: 

• You don’t have a prenup or want to correct an error in an existing prenup 
• Your financial circumstances have changed significantly since your marriage
• You want to protect yourself from new debts acquired during the marriage
• You want to address finance-related marital issues without filing for divorce
• You foresee a potential divorce and want to take care of financial matters beforehand

Safeguard Your Financial Interests With Help From a Stockton Prenuptial Agreement Attorney

If you’re considering entering into a prenup or postnup, you should speak to an attorney to ensure that the agreement reflects your wishes and protects your assets to the greatest extent possible. To get started, please contact a Stockton prenuptial agreement attorney at McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.