Ah, marriage—that beautiful union of two people…and their assets. Alas, nearly half of married couples don’t survive the long haul, with 46% ending in divorce or annulment, according to a 2016 report by the CDC/NCHS National Vital Statistics System, which studied marriage and divorce rates across 44 reporting States as well as Washington D.C. Another study concludes that the divorce rate for second marriages ranges from 67% to 80%. Not surprisingly, according to a 2016 study by the American Academy of Matrimonial Lawyers (AAML), 50% of divorce lawyers cited an increase in spouses seeking postnuptial agreements, during the three prior years.
Just what is a postnuptial agreement? Simply stated, it is a legal contract signed by a married couple after the weddings. This agreement not only dictates how a couple’s assets will be divided, but it also contains numerous other provisions dictating marital conduct—from the division of household chores to monogamy expectations to the allowable number of mother-in-law visits. But postnups are mostly about money.
You Need a Postnup When…
1. One (or both) of you entered the marriage with beaucoup bucks.
Divorce attorneys agree that postnups are must-haves for spouses who either enter the marriage with significant pre-marital assets or expect to inherit significant future assets. In these situations, a postnuptial agreement can help ensure that in the event of a divorce, each spouse exits the marriage "whole," with the holdings he or she brought in.
2. You have children from a previous marriage.
In cases of co-mingled families, postnups can pre-determine the share of assets your spouse will receive in the event of a divorce or your death, thus ensuring your offspring will receive the inheritance you want them to pocket. In most cases, without a signed postnuptial agreement spelling out these details, states automatically give the current spouses a share of your estate upon your death. Some State Laws Dictate Division of Joint Property in cases of divorce, as well.
3. You own a profitable business.
A postnup can also protect income or assets you earn during the marriage. This is crucial for spouses who own their own companies. Without a postnup, an ex-spouse may be entitled to collect a percentage of the business or its earnings.
4. You hated the idea of a prenup.
Some people believe that negotiating prenuptial agreements is a pointless and stress-inducing exercise, where the very act of contemplating divorce can doom a marriage from the start. Many couples opt for postnups simply because they don’t want awkward discussions about the division of assets before their big happy day. Therefore, these negotiations might proceed more smoothly once the newlyweds have settled down into their marital routine.
5. You recently received a large inheritance.
If one of you unexpectedly receives a sizable bequest or a gift from a family member, you may want to consider a postnup. Under normal circumstances, new assets become joint assets; therefore a postnup can help keep said assets earmarked just for you, in case of a marital split.
The Bottom Line
In certain marital situations, a postnup is strongly recommended for spouses who didn't sign a prenup. Postnups are particularly beneficial when one or both partners have significant pre-marital assets or children from previous marriages. With failed marriages, postnups can eliminate expensive and acrimonious divorce battles, and if a marriage succeeds until a death, a postnup can prevent inheritance disputes between a person’s surviving spouse and his or her heirs. With contractually delineated terms in place, you and your spouse know exactly who gets what, with little wiggle room for argument. For more, see Create a Pain-Free Postnuptial Agreement.