Prenuptial agreements (or prenups) are agreements you enter into with your fiance/fiancee PRIOR to the marriage about your rights and obligations during the marriage. You don’t know what will happen, but if it happens, you want to be prepared and know your rights.
In a word, they’re anticipatory.
Postnuptial agreements (or postnups) happen after you are already married. Something happened, and you realize the law isn’t so good for you. (Or maybe you rushed it and couldn’t get a prenup in time).
In a word, they’re reactionary.
History of Postnups
Historically, postnups were not recognized because the law views married couples as one entity. You cannot contract with yourself. The contract would be unenforceable.
Some states still believe this legal concept, and do not recognize postnuptial agreements. (Ohio).
Marriage is a Legal Contract
Marriage is a legal contract. Whether you like it or not, you already have a prenup before you marry – it’s called the law of your state. If you do not have a prenup, the law of your state will govern your finances during and after your marriage. The state law is your default prenup.
The Law is Not Always Fair
Naive people believe the law is “always fair” (that’s why it’s the law!), but nothing could be further from the truth. If you and your future spouse are similarly financially situated, and you continue to stay that way, then perhaps the law may be “fair”.
But with financially-disparate couples, the law is different in every state. This is so very unfair. For example, Colorado guideline child and spousal support is much lower than California. Texas guideline is even lower than Colorado. I once represented a woman whose case had jurisdiction issues. She retained counsel in California, Colorado and Texas. Guideline support in all 3 states: $12,000 per month in California; $5,000 per month in Colorado; and $3500 per month in Texas.
Why should the payor’s obligation be MORE in California just because they live in a different state? (Arguably it should be LESS, because the cost of living is so high). Why should the recipient receive less by state?
Community Property States
The best example of unfair laws is community property. Only nine (9) states have it: Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, New Mexico, and Wisconsin.
In these states, all assets and debts acquired DURING marriage is community. You may not have a problem with assets, but do you want to be held responsible for your spouse’s outrageous credit card spending during marriage?
Many a client has woefully stated, “I wish I had a prenup”, when they had to be responsible for 1/2 of the $80,000 their spouse racked up at Neiman Marcus during marriage.
You’re Already Married
The biggest difference between a prenup and a postnup is marriage. Discussions prior to marriage indicate financial maturity. How do we want to treat assets acquired during marriage? How about debts? It is anticipation of future events.
If you do not see eye to eye, you do not need to enter into the marriage. No harm, no foul.
After marriage, discussions about finances become more “protective”. The tone becomes more “second thoughts” than “planning”.
If you do not see eye to eye, you cannot leave. You’re already married.
Also, if the law favors one over the other after marriage, why would that person sign?
Postnups are More Insulting Than Prenups
In my opinion, postnups are far more insulting than prenups. We all enter into relationships with expectations. If you have a prenup entering the marriage, your actions will be different than if you did not. Marriage changes people. The roles they play vary depending on expectations. If you signed a prenup waiving alimony, mostly likely you would not quit your job during the marriage, because you would not be able to support yourself if the marriage ended.
Let’s say you didn’t sign a prenup, and during the marriage, you give up your career to raise a family. If your husband decides after 12 years of marriage to give you a postnup waiving alimony, how would you feel? Insulted! Disgusted! This was never discussed!
Prenups Can Protect Against Creditors
A prenup doesn’t just protect you against your spouse. Prenups can, in some instances, protect against creditors.
Postnups and Fraudulent Transfers
Postnups are different. Once there is a debt, it is too late to try and get out of that debt by signing a postnuptial agreement; it could be deemed a fraudulent transfer.
A fraudulent transfer (or conveyance) is an attempt to avoid debt by transferring assets out of your nane to another person. Post-nuptial agreements made after debts have been incurred are subject to being voided as fraudulent transfers.
If a transfer is fraudulent, a creditor can invalidate it and still attachyour assets.
Fiduciary Duties Imposed on Postnups
When you are single, you are negotiating as independent people.
Married people have fiduciary relationships with each other, imposed by Family Code 721.
Specifically, “spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. ”
“This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.”
While a prenuptial agreement is subject to standards of fairness, the fiduciary duty (duty of the highest good faith and fair dealing ) does not apply to a prenup, only a postnup.
Just because there are much higher standards to a postnup, and challenges facing its enforceability, does not mean you should avoid it altogether. Consult a competent family law attorney.