When you and your spouse got married, you didn’t draw up a prenuptial agreement. Perhaps you were both young adults struggling to make ends meet and pay off student loans. Maybe neither one of you wanted to broach the subject.
Now it’s a few — or maybe many — years later. You’re beginning to regret not putting something in place to protect yourself if you divorce. Is it too late?
It’s too late for a prenup but not for a postnuptial agreement. A postnup is essentially the same thing as a prenup. The only difference is the timing.
Couples get postnups for a number of reasons. Let’s look at some of the most common ones.
You’ve started a business
Whether you own and run the business together or only one spouse is involved, a postnup can detail how that business will be divided in a divorce or stipulate that it belongs to one spouse. This is particularly important if one spouse invested money in the other’s business to help it get off the ground, expand it or help it through a rough patch.
You want to keep property that’s become commingled
Maybe your spouse helped you purchase a home that has been in your family for generations or contributed to renovating it. That’s now a marital asset. If you want to ensure that it remains in your family if you divorce, you can stipulate that in a postnup.
You have children from another relationship or marriage
People who have children from previous relationships when they marry should get prenups. They protect the assets you want to set aside for those children — particularly if you pass away. If you didn’t get a prenup, however, you can use a postnup to take care of this. You should make your wishes known for your children consistently in whichever agreement you draw up with your spouse as well as your estate plan.
Both spouses have to agree to the terms of a postnup, just as they do in a prenup. Therefore, postnups can be tricky if one of you wants to include something the other doesn’t want.
If the marriage is already rocky, negotiations can be even more combative. That’s why it’s better to draft your postnup before it looks like you might have to use it soon. Both of you should have your own attorneys advising you during the process.