Can You Get a Prenup After Marriage? | Explore Law Firms and Legal Advice

Deciding which partner gets what assets in a divorce can be costly. That’s why many couples take the time to complete what is called a prenuptial agreement before marriage.

These agreements help set parameters for what happens after you go your separate ways. This may include decisions involving who gets custody of a child, who keeps a house or apartment, and what assets are considered joint or separate. Setting up an amicable legal agreement before marriage can make some of these choices clear, as well as streamline tough conversations down the road.

For all of these reasons, many lawyers recommend a prenup. But what if you’re already married? Though significantly less common, a postnuptial agreement can help you obtain that same legal peace of mind.

A prenuptial agreement, sometimes called a premarital agreement or prenup, is a legal agreement before marriage that describes in detail where assets would go upon divorce. These can help stave off arguments or disagreements about finances should a couple eventually separate. If a prenuptial agreement is not signed, upon divorce couples are subject to the laws of their state to determine property division and spousal support, also known as alimony.

While prenups are often recommended, the decision to get a prenup can be complicated. After all, you are bringing up the possibility of separation at a moment when you are also promising your entire life to a person. Frequently, they also involve complicated family dynamics.

“The other person’s going, ‘I thought you trusted me, I thought you loved me, now your parents want the prenup,’” says Peter Walzer, founding partner of Walzer Melcher & Yoda. “It can quickly become an issue.”

Walzer says the people for whom he typically helps prepare prenups fall into a few categories. The first category is young people with inherited wealth such as trusts whose parents want to ensure a prenuptial agreement. The second category includes seniors marrying a second time later in life. The third group is wealthy people marrying in their 30s and 40s with significant financial assets.

However, a prenup is a good idea for all soon-to-be-married couples. This is particularly true because while it is easy to know your assets going into a marriage, it is impossible to know what assets an individual or couple will acquire down the road. For example, if one person starts a company or acquires an inheritance after marriage, without a prenup the other individual might be entitled to that new asset and it may involve a complicated forensic accounting process.

In its guidance on prenuptial agreements, the American Bar Association notes, “When couples communicate about their finances before issues arise during marriage, they are far more equipped to handle inevitable bumps down the road.”

There are many reasons couples might not get a prenup before marriage. Some find the conversation to be unromantic, while others do not think they have enough assets to warrant a legal agreement.

“I have very few young clients coming in and asking for prenups unless there is something like a family business,” ssays Lindsay Childs, a family law attorney at Vetrano/Vetrano & Feinman. “Usually it is the more established couples that want to plan for the potential for divorce.”

In case you have not obtained a prenuptial agreement, it is possible to get a postnuptial agreement, although Childs and Walzer agree it is far less common.

“Sometimes, it comes up because people realize they should’ve gotten one before,” Childs says. “Sometimes, it’s because the party separates and then reconciles, and now that they’ve gone through the separation, they’re saying, ‘OK, if we’re going to commit to this and stick with it, here are the terms.’ And then it can also come up if somebody inherits a lot of money or gets an interest in the business.”

In his decades as an attorney, Walzer says that though he has received many requests for postnuptial agreements, only about five have come to fruition. He says these often appear later in a marriage, often due to someone coming into an inheritance. Similar to prenuptial agreements, they can be fraught with tricky dynamics.

“Think about it,” Walzer says. “What’s my incentive to sign that? What, are you going to get a divorce if I don’t sign it? There’s no incentive.”

Generally, it is easier to get a prenuptial agreement before you are married, because after marriage couples might have co-mingled money or acquired joint assets that can make postnuptial agreements more complicated. Following marriage, incentives will change and might make reaching an agreement significantly more difficult.

Childs says that the main things to consider remain the same, whether making an agreement before or after your marriage. You’ll want to consider assets that are shared or individual property.

“The first questions that we typically ask: What do you currently have? And then, is there anything you expect to change? And then the last set of questions is: What do you want to have happen?” Childs says.

She notes that these agreements will also dictate what happens to assets upon death. It is important to consider where you want assets to go, whether to your spouse’s estate or somewhere else.

“Every marriage is going to end either upon death or divorce,” Childs says.

A windfall of money years into a marriage is a common reason people consider a postnuptial agreement. In these cases, Childs notes, a postnuptial agreement can be made to exclusively deal with the new inheritance or financial factor.

When considering a postnuptial agreement, Childs ssays it’s nothing to rush. Each state’s laws can vary, so ensure you are aware of the specifics surrounding both a legal agreement and what would happen should you divorce without one.

“Try and give yourself time to think it through completely, because there are so many different scenarios to think about,” Childs says. “That helps also keep it kind of civil and respectful too, making sure someone doesn’t feel pressured or that they don’t have enough time to talk to an attorney or think things through.”