Postnuptial Agreements: More Couples Signing Them, Are They Enforceable?

Prenuptial agreements, or prenups, have long been the “plan B” for engaged couples. They force them to negotiate the division of assets as well as the responsibility for debt they possess should their marriage take a wrong turn. However, those same questions can sometime linger – or become more important – well after the two have tied the knot. Consequently, postnuptial agreements, or postnups, are gaining in popularity. (For more, see Postnup vs. Prenup: How They Differ.)

Postnups are designed to settle some of the same issues as a prenup, such as who gets what property and how much alimony a spouse will receive after a split, but in this case the contracts are signed after the wedding. In a 2015 survey by the American Academy of Matrimonial Lawyers, more than half of attorneys claimed they’ve seen a recent uptick in the number of spouses seeking a postnuptial agreement. Ninety percent of respondents said property division was one of the most common areas addressed by these contracts, followed by alimony/spousal maintenance (73%) and retirement accounts (45%). 

Couples often seek postnuptial agreements when they have certain triggering circumstances. For example, when one of the spouses expects a large inheritance, the two may want to work out who’s entitled to the money should they split. That’s especially important in community property states, in which assets acquired during the marriage are otherwise split equally between the spouses. When there’s a postnup in place, the agreement would override that equal claim on property. A stay-at-home parent who’s seen his or her earning power dwindle or a spouse who wants to provide for children from a previous relationship may also see the value of a legal document dictating the partition of assets.

In some cases negotiating these topics is seen as a way to keep a struggling marriage solvent. Suppose, for example, that one of the individuals has been unfaithful. Agreeing on post-divorce terms that are favorable to the other spouse can be a sign of an intention to keep the relationship intact. 

Does it work? Sometimes. In other cases, hoping that the document will save the relationship proves to be wishful thinking. But even for couples spiraling toward an eventual divorce, a postnuptial agreement might not be a bad thing. Experts say it’s often better to work out the division of property while you’re still on speaking terms rather than waiting for the relationship to turn toxic. That’s when divorces can become even more bitter – not to mention expensive. 

While having a postnuptial agreement may sound like a wise idea, it’s worth considering the downsides. For one, the agreement usually doesn't come cheap. To avoid conflicts of interest, experts say each spouse needs his or her own legal representative to hammer out the contract, and that can lead to some hefty attorney fees.

What’s more, a postnup is not always easy to enforce. Some states categorically don’t allow them, and those that do may have special rules about spousal support or other topics. Five years ago a coalition of lawyers pushed for a law, the Uniform Premarital and Marital Agreements Act, that would provide consistent treatment of postnups nationwide, yet only two states, Colorado and North Dakota, enacted it.

Prenups, on the other hand, have a longer history and benefit from nationwide acceptance. That’s why most experts see them as a better solution when it comes to designating what will happen to your financial assets and obligations.

Postnuptial agreements may seem like a safety blanket for a stay-at-home spouse or couples trying to repair a damaged marriage. However, before proceeding it’s worth figuring out the laws in your state through a reputable marriage attorney. In some cases the agreements end up being worthless when they actually reach the courtroom. (For more, see 5 Signs You Need a Postnup.)