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Prenuptial vs. Postnuptial Agreements : How Are They Different?

What They Are

Both a prenuptial agreement and a postnuptial agreement are contracts between soon-to-be and current marital partners. They are meant to allow the partners to discuss and create their own terms, conditions, expectations, and standards, surrounding finances, such as income, property, stocks, bank accounts, debts, and loans. Additionally, these can be utilized should a divorce occur, although these documents provide more benefits than simply contemplating divorce.

What's the Difference?

The obvious difference is the timing – a prenuptial agreement is prior to partners saying “I do” and a postnuptial agreement is after the partners have already tied the knot. The not too obvious difference is how it holds up in court IF it gets challenged. In the most simplest terms, here’s the legal difference:

Prenuptial Agreements: Presumed valid and if it were to get challenged, the person who wants to void the prenuptial agreement has to show the court why it should be unenforceable.

Postnuptial Agreement: Presumed invalid and if it were to get challenged, the person who wants to enforce the postnuptial agreement has to show the court why it should be enforceable.

The reason being is because these agreements are true contracts. Both people have stronger “bargaining” power and can simply walk away from getting married, making the prenuptial agreement stronger. On the other hand, that bargaining power is stripped upon marriage.

Other than those differences, everything remains the same. Although prenuptial agreements do have the seven (7) day waiting period, our firm at Wells-Gibson Family Law also utilize that same seven (7) day waiting period for postnuptial agreements, to strengthen the validity of the postnuptial agreement.

Should I Hire An Attorney To Draft The Agreement?

Yes. It is extremely important that both prenuptial and postnuptial agreements be carefully legally drafted and uniquely tailored to the couple’s needs.

These documents are not and never should be cookie-cutter documents. Once signed, they are legally binding documents that can have court enforcement behind them.

Should you wish to draft your own agreement, it is strongly advised and highly encouraged to seek counsel to have the agreements reviewed PRIOR TO SIGNING.


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