Can You Sign a Prenup After Marriage? Here’s What to Know
Learn how postnuptial agreements work, their legal requirements, and when they may be useful for protecting shared and individual interests.
While many couples arrange prenuptial agreements before marriage, questions often arise about establishing similar financial frameworks after the wedding vows have been exchanged. Spouses might seek such arrangements due to shifts in financial circumstances, the start of a business, or a desire for greater clarity regarding assets and responsibilities. This leads to the question of whether a legally binding financial agreement can be created once a couple is already married.
Legal Recognition
Agreements similar to prenuptial contracts can indeed be established after marriage. Commonly known as postnuptial or post-marital agreements, these contracts allow spouses to define their financial rights and obligations during the marriage or in the event of separation, divorce, or death. They provide a way for couples to set rules for their property and assets that may differ from standard state laws.
Historically, such agreements faced legal challenges, rooted partly in the outdated concept of “marital unity,” which treated spouses as a single legal entity incapable of contracting with each other. Even after this idea faded, courts remained wary, sometimes viewing postnuptial agreements as potentially encouraging divorce and thus contrary to public policy. This stance began to change significantly from the 1970s onward, influenced by rising divorce rates and the advent of no-fault divorce laws.
Today, postnuptial agreements are generally recognized as valid contracts in most U.S. jurisdictions, provided they meet specific legal requirements.1NAEPC Journal of Estate & Tax Planning. Premarital and Marital Agreements This acceptance reflects a shift towards acknowledging the autonomy of married couples to manage their financial affairs privately through binding agreements made at any point during their marriage. While the Uniform Premarital Agreement Act (UPAA), adopted widely since 1983, standardized rules for prenuptial agreements, it did not address postnuptial ones. Later, the Uniform Premarital and Marital Agreements Act (UPMAA) was developed in 2012 to cover both types, aiming for greater consistency, though its adoption has been less widespread.2Colorado Bar Association. The New Era of Marital Agreements and Cohabitation Agreements
Requirements for a Valid Document
For a postnuptial agreement to be legally sound, it must typically meet several key conditions designed to ensure fairness and mutual understanding. Failure to satisfy these standards can render the agreement unenforceable.
Written Format
A fundamental requirement is that the agreement must be in writing.3NAEPC Journal of Estate & Tax Planning. Premarital and Marital Agreements Oral agreements concerning financial arrangements upon divorce or death are generally not upheld. The written document provides a clear record of the terms, and both spouses must sign it to indicate their consent. Some states may require additional formalities, such as witnessing or notarization, to underscore the agreement’s significance and prevent disputes over its execution.
Disclosure
Transparency regarding finances is crucial. Both spouses are required to provide a full and fair disclosure of their assets, liabilities, and income when the agreement is signed.4NAEPC Journal of Estate & Tax Planning. Premarital and Marital Agreements This includes real estate, bank accounts, investments, business interests, debts, and earnings. Complete disclosure ensures that each party can make informed decisions. Attaching detailed financial statements is common practice. Concealing assets or providing misleading information can be grounds for invalidating the agreement later.
Voluntariness
The agreement must be entered into voluntarily by both parties, free from duress, coercion, fraud, or undue influence.5NAEPC Journal of Estate & Tax Planning. Premarital and Marital Agreements This means each spouse must sign freely, without improper pressure or manipulation. Factors suggesting a lack of voluntariness might include signing under extreme emotional distress or being given insufficient time for review. The opportunity for each spouse to consult with independent legal counsel before signing is often viewed as strong evidence of voluntariness.
Enforcement by Courts
When a postnuptial agreement is relevant in legal proceedings like divorce, courts review it to determine enforceability rather than automatically accepting its terms. Generally, an agreement will be upheld if it follows basic contract principles and meets the specific legal standards for marital agreements.
Courts sometimes apply stricter scrutiny to postnuptial agreements compared to prenuptial ones. This is because spouses already owe each other fiduciary duties—duties of utmost good faith and candor—after marriage.6NAEPC Journal of Estate & Tax Planning. Premarital and Marital Agreements The circumstances surrounding the agreement’s creation are examined closely to ensure fairness and lack of improper pressure.
A key factor is whether the agreement is “unconscionable,” meaning excessively unfair or one-sided.7NAEPC Journal of Estate & Tax Planning. Premarital and Marital Agreements This assessment might consider the circumstances when the agreement was signed or, in some jurisdictions (particularly regarding spousal support), when enforcement is sought. An agreement isn’t necessarily unconscionable simply because it leads to an unequal outcome, but terms that are grossly unfair or cause extreme hardship might not be enforced.
Courts interpret the agreement’s language to ascertain the parties’ intentions. However, certain provisions are generally unenforceable as a matter of public policy, such as those attempting to pre-determine child custody or child support, which must be based on the child’s best interests at the time.8NAEPC Journal of Estate & Tax Planning. Premarital and Marital Agreements Provisions seen as encouraging divorce or violating laws are also typically not enforced.
Potential Reasons for Disputes
Even with careful planning, disputes over postnuptial agreements can arise later. A common source of conflict involves the financial disclosures made when the agreement was signed. If one spouse later discovers that the other failed to fully reveal assets or misrepresented their financial situation, they may argue the agreement was based on fraud or misrepresentation and should be invalidated, citing the breach of the duty of honesty between spouses.
Conflicts also frequently stem from the circumstances surrounding the signing. A spouse might claim they were subjected to duress, coercion, or undue influence, arguing their consent was not truly voluntary. Proving such claims can be difficult, but evidence of pressure, insufficient time for review, or exploitation of a power imbalance can fuel these disputes.
Ambiguity in the agreement’s language is another potential issue. Unclear wording about how specific assets are treated or how support is calculated can lead to differing interpretations, sometimes requiring legal intervention to resolve.
The perceived fairness of the agreement can also trigger disputes. A spouse might feel the terms are unconscionable, perhaps due to changed circumstances or upon further reflection, even if procedural requirements were met initially. A belief that the outcome is grossly inequitable can motivate a challenge to the agreement’s enforcement.
Changing or Revoking
Life changes, such as having children or significant shifts in finances, may lead spouses to reconsider their postnuptial agreement. Couples are generally permitted to modify or cancel their existing agreement, allowing it to adapt over time.
Altering or revoking a postnuptial agreement requires mutual consent; one spouse cannot unilaterally change or void the contract. Both parties must agree to the proposed changes or cancellation.
Typically, modifications or revocation must be documented in a new written agreement.9NAEPC Journal of Estate & Tax Planning. Premarital and Marital Agreements This document should clearly state the intention, whether modifying specific clauses or canceling the agreement entirely, and detail any changes. It generally must be signed by both spouses with the same formalities required for the original agreement, such as notarization or witnessing, depending on state law. This formal process ensures clarity and helps prevent future disputes.
When to Consult Counsel
Navigating postnuptial agreements often benefits from professional legal advice. Consulting an attorney specializing in family law is advisable when considering creating such an agreement or when presented with one drafted by the other spouse’s lawyer. An attorney can explain the long-term implications, ensuring each spouse understands the rights they may be altering, such as those related to property division or spousal support under state law.
It is strongly recommended that each spouse retain separate, independent legal counsel. This ensures that each party’s interests are represented, as their interests might diverge when defining financial rights in case of separation or divorce. Independent representation helps promote fairness and voluntariness in the negotiation process. Access to independent counsel is often considered by courts when evaluating an agreement’s enforceability.
Legal advice is also valuable when significant financial changes occur after an agreement is signed, like acquiring substantial assets or starting a business. An attorney can review the existing agreement considering these changes and advise if modifications are needed. Furthermore, counsel can help draft the agreement with precise language to minimize future misunderstandings. Involving legal professionals helps ensure the agreement accurately reflects the couple’s intentions and meets legal standards for validity and enforcement.