Prenup vs. Postnup

Why courts scrutinize postnups more closely

When we say “scrutinize,” we mean how closely a court will examine the agreement and the circumstances surrounding the agreement. In many states, courts tend to examine postnuptial agreements more closely than prenups because they are a relatively newer legal tool and are often signed during stressful or sensitive moments, prompting judges to take extra care that the agreement was made fairly. In addition, there is a fiduciary duty between spouses that does not exist with prenups—fiancés do not have legal status under the law, whereas spouses do. Spouses owe each other a level of responsibility, which includes being fair when entering into contracts. 

When a prenup is usually the better option

People often wonder whether a prenup or postnup is a better option. Generally speaking, a prenup will be the better option if the couple is not yet married and their goal is to protect assets. This is because prenups are typically subjected to less scrutiny by courts, are upheld in more states, and are routinely seen by judges in divorce court. 

When a postnup may make sense

A postnup may become the better option if the couple is already married and therefore has missed their opportunity to get a prenup. It may also make sense for a couple if they have had a significant change in finances or lifestyle—for example, if one spouse started a business, received an inheritance, or had an increase/decrease in income. However, it’s important to understand that a postnup is not a per se substitute for a prenup. It’s a secondary option when the primary option is no longer available. 

Differences in enforceability and risk

Postnups generally carry more legal risk because they can be less enforceable in certain states or situations—in a small handful of states, postnups are not enforceable at all. This is why prenups are generally the better option. Postnups tend to face more challenges in courts because of the fiduciary duty spouses owe to one another and the tendency of postnups to arise in tense marital situations. However, when done compliantly and with the proper safeguards in place like financial disclosure, consideration, and legal representation, a postnup can definitely be upheld. 

Do prenups and postnups cost the same?

They can, but it totally depends on the attorney you hire, the amount of negotiations, and the goals each party is looking to achieve. Some attorneys may charge a bit more for postnups given the high level of risk they may carry. Attorneys sometimes don’t want to take on the liability of writing a postnup if they are hard to enforce in their state. In addition, postnups sometimes incur more negotiations between couples, which will rack up the cost significantly.

Can a prenup be converted into a postnup?

A prenuptial agreement can technically be converted into a postnup. For example, if the couple starts a prenup, but doesn’t finish it before getting married, their attorney may be able to assist them in transforming the original prenup into a postnup. However, in the situation where the couple already has a prenup in place, then they would need to make an amendment to the prenup, which is effectively a postnup. So there would be two contracts: the prenup and then the amendment/postnup which either revokes or alters the original prenup in some way. 

Choosing the right agreement for your situation

Generally, the right agreement for you will mostly be based on whether or not you are married yet. If you are not married yet, a prenup is usually the best option. If you are already married, your only option is a postnup. While these documents are similar, there are some key differences, including their enforceability, which is why getting a prenup is usually the best option for most couples. Rest assured that when done properly under state law, a postnup can be enforced, as long as it is done with care.