While prenups and postnups may evoke negative feelings, they’re essential planning tools for couples. If you get divorced, they offer a solid course of action for handling your finances and assets. Even if you stay happily married, prenups and postnups can provide peace of mind during your relationship.
But what’s the difference between a prenup and a postnup, and which one should you choose? Below, we’ll explore the differences between these two documents to help you decide which is the right one for you and your partner.
Prenup vs. Postnup: 5 Key Differences
Prenuptial and postnuptial agreements serve similar purposes. They’re both legally enforceable contracts that outline how assets, debts, and alimony will be handled in the event of divorce. However, they differ in terms of five key factors. Learn more about these below to help you decide which one to sign with your partner.
| Factor | Prenup | Postnup |
|---|---|---|
| Timing | Before marriage | After the couple is already married |
| Primary Reason for Creation | To prevent conflict over financial issues | To adapt to changing financial circumstances during marriage |
| Complexity | May be simpler to create | May be more complex to create |
| Applicability | More likely to be permitted for any couple | More likely to be restricted to situations that require reconciliation |
| Scrutiny | Less likely to be scrutinized by the courts | More likely to be scrutinized by the courts |
1. Timing
One of the most obvious differences between a prenup and a postnup is when they’re created and signed. Couples write and sign a prenup before they get married. If couples create a prenuptial agreement, they must intend to get married. A prenup only becomes legally binding when the couple is married. Otherwise, its terms won’t hold up in court.
Couples sign a postnup after they get married. Couples must be legally married to sign a postnup. Even though half of US adults are open to the idea of prenups, according to a 2023 Harris Poll, postnups allow for married couples to settle on some issues after they’ve already wed.
Have You Decided on Divorce?
If you and your spouse have already decided to divorce, you can create a divorce settlement agreement to use during divorce proceedings. Review our divorce settlement checklist to ensure you fill it out properly.
2. Reasons for Creation
A couple creates a prenup before marriage to establish a financial plan and prevent marital conflict over assets. It’s a preventative measure, often written by partners while they’re on good terms.
Other reasons a couple may write a prenup include the following:
- One partner plans to bring significant assets into the marriage and wants to protect them.
- One partner anticipates receiving an inheritance in the future and wants to keep it in their name.
- One partner is entering their second marriage and wants to reserve their assets for children from a previous relationship.
Even if neither partner is particularly wealthy, a prenup can help the partners get their financial affairs in order and clarify what assets belong to which party.
On the other hand, couples create postnups to account for changes during their marriages. For example, they can write it to update asset division, debt allocation, or other factors in response to:
- The birth of a child
- The sudden acquisition of debts
- The sudden acquisition of assets
- A fluctuation in one or both partners’ income
- The opening of a new business by one or both partners
A postnup can also be used to address mid-marriage arguments over finances or cover things that are missing or unclear in an existing prenup. Still, a couple may create a postnup because they intended to write a prenup before marriage but didn’t get a chance to do so due to time constraints or a lack of education about what the document entails.
Prenups & Postnups Override State Laws
As long as the prenup or postnup is a contract written with enforceable terms, it will override state laws. This means that the partners can decide what happens to their property in the event of death or divorce, not government rules. For example, partners can distinguish between separate and marital property if their state is a community property state.
3. Complexity
While the complexity of prenups and postnups can depend on couples’ situations, prenups tend to be less complex to draft. They typically focus on the assets and debts that each partner brings into the marriage, making them more straightforward, although they can also account for future asset and debt acquisition.
Postnups must account for joint assets and debts, an entanglement that may be more intricate than separate assets in a prenup. As a result, it may be more expensive to enter a postnup, as it can require more extensive legal review.
Whether you’re creating a prenup or a postnup, having a family law attorney review it can ensure that the agreement adequately protects both parties. You can save on some costs by first drafting your agreement with Legal Templates’s guided questionnaire, and then having a lawyer look over your terms.
4. Applicability
Today, couples in most states can create a prenup or postnup without restrictions. That being said, historically, prenups tend to be more widely applicable. Any couple planning to get married can enter one. However, postnups may have some restrictions and limitations, depending on where you and your spouse reside.
For example, Nebraska generally does not permit postnuptial agreements unless the couple intends to separate (as reinforced by the 2016 Nebraska Supreme Court case Devney v. Devney).
Similarly, Ohio used to disallow postnups unless the couple signed a separation or reconciliation agreement. However, Senate Bill 210, which was passed in 2023, now allows postnups in most situations.
5. Scrutiny
Courts tend to investigate postnups more closely. They look for issues with fairness, as postnups may be created when the marriage is well along its way, and one partner may have more leverage in the relationship.
In contrast, prenups typically face less scrutiny since couples draft them before getting married, when both parties are on equal footing. Even though prenups are not as closely examined by courts, courts will still render them void if they find they’re grossly unfair or if they were executed under pressure or too close to the wedding date.
Prenups and postnups must have certain elements to be valid, such as voluntary entry.
Prenup vs. Postnup: Which Should My Partner and I Choose?
When deciding between a prenup and a postnup, you and your partner may wonder, “Is a prenup better than a postnup?” The reality is, one document is not inherently better than the other. What makes sense for you depends on your situation.
If you’re not yet married and want to protect your assets ahead of time, a prenup is the best decision for you. If you and your partner are already married and you need to address changes in your financial situation, your only option is a postnup. While postnups may be scrutinized more closely by the courts, they can still offer much-needed protection.
Even though some people view prenups and postnups as indications of a lack of trust, these misconceptions couldn’t be further from the truth. They’re not unromantic—they’re setting you and your partner up to feel secure and respected throughout your relationship. Discuss your needs with your partner to settle on the right document, and consult a family law attorney for guidance on your situation.
Protect Your Assets With a Postnup
Make a legally sound postnuptial agreement to protect your property, assets, and debts. Our template walks you through every detail.
