What are the Differences Between a Prenuptial Agreement vs. a Postnuptial Agreement?

Many people are familiar with what prenuptial agreements are. But if you don’t have a prenup, it's important to be aware that there is another type of agreement you can enter into to protect your assets. A postnuptial agreement is a contract that can be entered into at any point during your marriage if you anticipate divorce or you want clarity regarding the way in which your finances and property will be managed and owned. While both contracts can accomplish similar objectives in Maryland, the main difference between a prenuptial agreement vs. a postnuptial agreement is timing. Specifically, a prenup is signed before the couple is married — a postnup can only be signed after marriage.

What is a Prenuptial Agreement?

A prenuptial agreement (often referred to as a “prenup”) is a legal contract entered into between a couple prior to marriage. It can outline the couple’s financial expectations for the marriage, establish their financial responsibilities, and determine how property would be divided if they legally part ways. Critically, if a couple later decides to divorce, a prenup can help avoid lengthy and contentious litigation over the division of assets.

Prenups aren’t only useful in divorce — they can cover a wide range of financial topics related to marriage. Prenups can be used to:

• Outline how financial matters will be handled during marriage
• Define separate and marital property
• Clarify how retirement savings will be handled in the event of divorce
• Specify who is responsible for certain debts
• Safeguard your business interests
• Establish alimony
• Determine pet custody matters

Prenups cannot be used to determine child support or child custody matters. In order to be valid and enforceable in the event of divorce, a prenup must be signed by both parties and entered into voluntarily. Both parties must also have made full financial disclosure and had the opportunity to consult with their own attorney (even if a person decides to sign without the benefit of counsel). If a judge finds that the prenup is unfairly one-sided or was entered into under duress, it may be deemed unenforceable and set aside. It can be very difficult to have a prenuptial agreement set aside once signed.

What is a Postnuptial Agreement in Maryland?

When determining whether a prenuptial agreement vs. a postnuptial agreement is right for your situation, it’s important to understand how each contract can be used. A postnuptial agreement is a contract that is entered into after the couple is married — as opposed to before the marriage takes place. A postnuptial agreement can address the same subject matter as a prenup and the same rules for enforceability apply. Notably, if you did not sign a prenup, a postnup can be a second chance to protect your assets.

Postnuptial agreements can be beneficial in the following situations:

• Divorce is anticipated and you did not protect your property with a prenup
• There have been changes in your financial circumstances
• Your financial goals have evolved
• You received an inheritance
• You started a new business during the marriage
• One spouse has incurred substantial debt
• There is a financial imbalance in the marriage

Like a prenup, a postnuptial agreement in Maryland can be used in connection with estate planning. It can clarify your spouse’s property rights and ensure that children from a previous marriage are provided for in accordance with your wishes.

What are the Pros and Cons of Signing a Prenuptial Agreement vs. a Postnuptial Agreement?

While both documents can effectively cover the same issues, if timing is not an issue - it’s vital to consider the pros and cons of entering into a prenuptial agreement vs. a postnuptial agreement. While marriage is an economic relationship as much as it is an emotional one, a prenup can help ensure you and your future spouse are on the same page when it comes to finances before you are bound by Maryland law. This can help reduce contention over these matters during your marriage.

It’s best to safeguard your property from the start. Even with the option to execute a postnup, if you do not enter into a prenup, you are essentially leaving your assets unprotected. However, if you acquire assets you had not anticipated or your financial situation evolves during your marriage, a postnup can address these changes and protect the new assets.

Although they can serve a similar purpose and offer a similar protection, courts tend to scrutinize postnuptial agreements in Maryland more than prenups. A prenup is signed when the couple still has the option to not marry — with a postnup, the couple is already married and one spouse might have more financial control than the other. Courts want to ensure a spouse was not pressured into signing a postnup just because they feel as if they are financially dependent or wish to avoid conflict within marriage.

Contact an Experienced Maryland Divorce and Family Law Attorney

If you would like to learn more about whether a prenuptial agreement vs. a postnuptial agreement is right in your situation, it’s best to discuss your specific circumstances with a knowledgeable divorce and family law attorney. At the Law Office of Shelly M. Ingram, our Fulton, Maryland divorce attorneys provide our clients with high quality legal services for a wide variety of divorce and family law matters — including drafting, negotiating, and litigating prenuptial and postnuptial agreements. Trained in collaborative divorce, mediation, and traditional divorce litigation strategies, we work closely with our clients to achieve favorable results in every case.