Is It Too Late to Protect Your Assets if You Didn’t Get a Prenup?

by Staff | December 7th, 2020

There are many reasons couples don’t get prenuptial agreements before tying the knot. After all, who wants to plan for a divorce when the bride hasn’t even walked down the aisle yet? But from a practical perspective, prenups are important—especially when significant assets are involved in a marriage.

Because of the emphasis on getting prenups written, signed, and notarized long before the actual wedding ceremony takes place, many people assume that it’s too late to do anything once the marriage certificate is signed. However, there’s still an option for both spouses to protect their finances even after the honeymoon: a postnuptial agreement.

What Is a Postnup?

As the name implies, postnuptial agreements are just like prenuptial agreements, except they’re made official after the marriage is legally recognized. As with prenups, postnups help couples make clear delineations in their assets should their marriages end. For example, a wife who runs her own business may want to ensure it stays in her sole possession, while a husband with a large inheritance may want sole access to the money.

How Do Postnups Differ from Prenups?

Aside from the obvious difference of being enforced after a marriage officially begins, postnups also allow couples to share the same attorney when drafting the legal documents. Prenups, on the other hand, require engaged couples to use separate lawyers.

Previously, postnups were viewed with more skepticism than prenups, especially in the eyes of the law. But in recent years, postnups have become more common and thus more likely to be enforced. That means that while they may not always be as respected as prenups, couples who get postnups can have peace of mind knowing that their agreed-upon wishes have a good chance of being granted if their marriages end.

Who Should Get a Postnup?

In an ideal world, no one would ever need a prenup or a postnup because divorces would be unheard of. But in the real world, a substantial percentage of marriages end in divorce. And when they do, it’s important for each partner to have a say in the assets that they split and the assets that they take away from the marriage.

Couples that are good candidates for postnups include:

  • Couples that wanted to get a prenup but didn’t have the time, means, or access to get one before getting married
  • Couples whose financial situations change dramatically during the marriage via promotions, lottery winnings, inheritances, poor financial decisions, etc.
  • Couples where one partner stops working to care for children and thus would require more assets in the event of a divorce
  • Couples who are considering a divorce but want to make the actual separation process easier and more streamlined (i.e., spending less time disputing assets in court)

Why Might a Postnup Be Invalidated?

Few marriage-related documents are considered ironclad, especially when one or both spouses contest them. In addition, sometimes family law courts don’t give much weight to certain documents, including prenups and postnups, based on a few important factors, such as:

  • All relevant details of the postnup aren’t in writing
  • The postnup isn’t notarized
  • The creation of the postnup didn’t involve input or direction from both spouses
  • The postnup contains false information or inaccurate details about the marriage
  • The postnup is considered grossly unfair to one spouse

Need a Postnup? Our Indiana Family Law Attorneys Can Help

Anxiety and fear of the future can exist in even the most blissful marriages. Life can change quickly, and agreements that made sense when wedding invitations were being sent out may no longer make sense after kids, a mortgage, and growing retirement accounts.

At Fleschner, Stark, Tanoos & Newlin, our Indiana family law attorneys are here to help couples throughout all aspects of their marriages, whether it’s creating prenups, postnups, or even navigating the potential pitfalls of divorce. Contact us today for a free consultation. We’ll work hard to ensure your best interests are fully recognized and protected.

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