It’s Never Too Early… or Too Late: Prenuptial and Postnuptial Agreements

Over the last fifty years, the average age of first marriage in the United States has increased from approximately 21 to about 29. Today, individuals entering marriage for the first time are often further along in their careers and may be in a stronger financial position than previous generations. Young professionals are also generally more financially sophisticated and aware of the importance of protecting their assets.

At the same time, the failure rate for first marriages is estimated to be nearly 45 percent. As a result, it is not unusual for individuals entering their first marriage to consider ways to protect premarital assets should the marriage end in divorce. The number of second marriages in the United States has nearly tripled over the past fifty years, and the failure rate for second marriages is estimated to be approximately 65 percent. Not surprisingly, more couples are turning to prenuptial and postnuptial agreements to help protect their financial interests.

Prenuptial Agreements

A Prenuptial Agreement is a formal written contract that must be signed by both parties and properly notarized before the marriage takes place. The primary purpose of a prenuptial agreement is to allow the parties to “opt out” of certain default state laws governing property distribution and financial support in the event of divorce.

For a prenuptial agreement to be enforceable, several important requirements must be satisfied:

• Full financial disclosure. Both parties must disclose all assets and debts. Failure to disclose financial information or attempts to conceal assets is one of the most common reasons courts invalidate prenuptial agreements.

• Voluntary execution. The agreement must be entered into freely by both parties without duress or coercion. Presenting a prenuptial agreement immediately before the wedding, sometimes referred to as negotiating “in the shadow of the altar,” may be viewed by a court as coercive.

• Fairness. The agreement must be fair and not so one-sided that it would be considered unconscionable.

A prenuptial agreement can identify each party’s separate property, establish the amount and duration of potential spousal support, assign responsibility for premarital debts, and address or waive certain estate rights.

However, a prenuptial agreement cannot determine issues related to child support, custody, or visitation. Those matters are decided by the court based on the best interests of the child at the time of separation or divorce. A prenuptial agreement also cannot include provisions that involve illegal conduct or attempt to regulate personal lifestyle choices.

Postnuptial Agreements

A Postnuptial Agreement is similar in many ways to a prenuptial agreement but is entered into after the parties are already married. Postnuptial agreements must satisfy the same legal requirements and have the same general powers and limitations. Courts often scrutinize postnuptial agreements more carefully because spouses already owe each other a fiduciary duty once they are married.

Whether entering into a prenuptial or postnuptial agreement, it is strongly recommended that both parties consult with independent legal counsel. If one or both parties do not have legal representation, the agreement may be more vulnerable to challenge and could potentially be invalidated.

Raising the topic of a prenuptial or postnuptial agreement can feel sensitive and uncomfortable. However, open communication and honesty are fundamental components of a healthy relationship. One party may wish to protect multigenerational wealth, family property, or assets accumulated before the marriage. Discussing these issues does not necessarily reflect distrust or uncertainty about the relationship. Rather, it acknowledges that the future is unpredictable and that thoughtful planning can help both parties move forward with greater clarity and security.