What is the Difference Between a Prenuptial Agreement and a Postnuptial Agreement?

People tend to be more familiar with the idea of a prenuptial agreement (prenup) than with a postnuptial agreement (postnup). Basically, prenuptial just refers to an agreement made before a marriage, while postnuptial refers to an agreement made after marriage. At Seattle Divorce Services, our prenuptial agreement attorneys manage the creation, modification and execution of both documents.

creating a prenup with a lawyer


Complications with Prenup Agreements

One issue that we run into frequently is that a prenuptial agreement may not be effective if it is signed too close to the date of marriage. To be effective, i.e. to have it later upheld by a court, it needs to be clear that the agreement was signed voluntarily and with full informed consent. Informed consent means that each party should have gone over the agreement with a lawyer before signing it.

In terms of timing, there is a presumption that it may have been signed under duress if it was signed close to the date of the marriage. Duress does not mean forced to sign, but it does refer to the idea that with the marriage coming up, the party may have felt they needed to sign it to avoid causing problems with the wedding.

Very often when people contact us about a prenuptial agreement, the wedding is only weeks away. That is far too close to get it drafted, reviewed, and signed without causing problems in terms of enforceability. What we will often do in that circumstance is advise the client that the agreement should be done as a postnuptial instead. If we complete the agreement after the wedding, then there is no time pressure and the parties can sign when they feel ready.

When to Create a Postnuptial Agreement

Sometimes postnuptial agreements are not just postponed prenups. A couple may, for a variety of reasons, choose to make an agreement at any time during their marriage. This could involve converting community property to separate property, or converting separate property to community property. For instance, one partner may have received an inheritance (which is typically treated as separate property) and want to clarify that the inherited property will belong to both.

Applying the Collaborative Process to the Creation of Prenuptial and Postnuptial Agreements

Another thing we often recommend is using a collaborative process to negotiate the agreement. Too often one partner goes to a lawyer and has a prenup drafted and then presents that agreement to the other partner for signature. That generally means that the agreement has been drafted according to the wishes of the first partner and designed to protect them primarily. This creates an inherent conflict whereby the second partner has to come back and negotiate for anything they would like to see changed. This kind of conflict is not a good way to go into a marriage.

In a collaborative process, both attorneys can meet with both parties together and ask questions about what the couple is hoping to accomplish with the agreement. If there are disagreements, then those can be ironed out before any drafting starts. Then the attorneys, having heard from both parties, can draft an agreement that reflects the actual provisions the parties have discussed and agreed upon. This kind of cooperation in coming to agreements is also a much better foundation for working together throughout the marriage.

Let Our Seattle Family Law Attorneys Help with Your Prenup or Postnup Today!

No matter what agreement you wish to make or what stage of the process you’re in, our prenuptial agreements attorneys are here to help. Reach out to us and schedule your consultation today.