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Prenuptial and postnuptial agreements: What's the difference?

Every couple goes through an adjustment phase when they merge their lives. However, there are things that you can do to set some rules and protect your individual assets, which can be crucial if a marriage ends whether by divorce or death.

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You may already be familiar with prenuptial agreements, but postnuptial agreements can also prove to be quite valuable during a transitional time. It can be helpful to know what these documents are and what makes them different from one another.

Both prenuptial and postnuptial agreements are legal documents signed by two people who are married or are about to be married. They often address factors like spousal support, asset division, future income and retirement benefits and are tools that couples use to identify asset ownership and marital ground rules. But they are not the same thing.

The biggest difference between prenuptial agreements and postnuptial agreements is the date of creation. A prenuptial agreement is signed before two people are married and a postnuptial agreement is signed after marriage.
Some consider prenuptial agreements to be more enforceable than postnuptial agreements, considering the fact that they are drawn up when two people are still independent and assets have not legally merged. This can make it easier to avoid gray areas.

Postnuptial agreements can be helpful if a couple never had a prenuptial agreement and is struggling through a difficult time where the future of the marriage is unstable. They can also be an option for people who experience a significant change in their marriage. For instance, if one person suddenly comes into considerable wealth for something they may have considered to be of little value prior to a marriage, it can be wise to discuss and define ownership.

Some argue that postnuptial agreements are less reliable than prenuptial agreements because a different fiduciary duty and responsibility exists between between a married couple as compared to a couple prior to marriage. Courts may find reasons not to enforce them and, as noted in this Daily Beast article, a postnuptial agreement may be seen as a way to relieve some pressure on a relationship, not an actual solution or long-term plan.

If you have questions about a prenuptial or postnuptial agreement, it can be crucial to discuss them with an attorney who can explain your rights and your options. Options such as mediation and collaborative practice normally offer a more respectful and positive method of having these discussions.

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