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POSTNUP

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You Got Married But Have Concerns - Is a Postnuptial Agreement Right for You?

Did you get married without a signed prenuptial agreement? Or if you have a prenup, why consider a postnuptial agreement (“postnup”)? You may need a postnup if you did not sign a prenup but realize you need one after you got married. Couples face challenges in marriage. Are there new, unexpected financial issues that are not covered in your prenup? Maybe your spouse cheated on you? Or your spouse’s business soared in profits because they stayed late nights at the office, while you were taking care of the kids and everything else under the sun? Whether you’re thinking about a postnup to try and rebuild trust or plan your family’s future, get the help of a skilled, trained, and experienced family lawyer.

Consider Speaking With Your Spouse About Why You’re Considering a Postnup

Time is your friend now while you’re on decent terms in your marriage. Don’t wait until your marriage hits the rocks.

Use Terms that are Clear and in Writing to Protect Your Future.

Postnups vs. Prenups: What’s the Difference—and Which One Do You Need?

Prenuptials are agreements that you and your fiancé create and sign before getting married. Postnuptials are agreements that you make and sign after getting married. Even if you already have a prenup, you may need a postnup to make changes to your prenup agreement. Maybe you just inherited a lot of money from your aunt or your spouse’s business suddenly took off. Ask yourself: if you got divorced, would these changes make the asset split in your prenup seem unfair? It’s best to talk through the terms of your postnup with your spouse (and your own lawyers) while you’re still on good terms but have concerns about aspects of your marriage. An experienced and knowledgeable family lawyer can help you draft a postnup that fits your unique situation.

Will Your Postnup Hold Up in Massachusetts?

Massachusetts courts apply strict scrutiny to postnuptial agreements. By entering into a marriage, Courts want to ensure that you and your spouse are honest and fair to each other. A postnup must meet the following requirements to be legally enforceable:

1. Full and Honest Financial Disclosure. Each spouse must provide an accurate and complete list of income, assets, and debts.

Imagine a couple, Hanah and Richard, create a postnup after five years of marriage. Hanah gives an honest list of all her savings, her retirement accounts, and the marital home that she and Richard own together. But Richard leaves out a $50,000 credit card debt he had before the marriage. When the couple later separates, Hanah discovers Richard’s debt. Because Richard didn’t fully disclose his financial situation, the court questions the validity of the entire postnup. Richard’s omission puts the whole agreement at risk of being thrown out. This leaves both spouses vulnerable to costly, unpredictable court battles if they get officially divorced.
Lesson? Be very thorough in going over your finances! Even accidentally leaving out financial details can mean a court throws out your postnup.

2. Voluntary and Informed Consent

  • Voluntary: If one spouse was pressured, like “sign this or else”, or a tight deadline, your postnup could be doomed in court. One spouse should not be put in a corner and agree to something they would not do.
  • Informed Consent: Make sure that neither party feels forced to sign the postnup due to threats of the marriage ending or manipulation.

3. Fair and Reasonable Terms:

Your postnup must be fair when you and your spouse put it together and STAY fair throughout your marriage to the time of divorce or death. Say one spouse keeps all the real estate and bank accounts, and the other gets a couch and a lamp. This postnup won’t fly in court, as it puts one spouse at an obvious disadvantage. Other NO-NOs include waiving child support or custody rights and punishing a spouse for personal activities like spending time with friends.

4. Use Separate and Independent Lawyers:

Courts give more weight to postnups that involve a separate lawyer for each person. This shows the Court you played fair and both knew what you were doing.

5. Written, Signed, and Notarized Document:

The postnup must be in writing and signed by both spouses. Notarization is where the document is signed in front of a notary to prove it’s real. This is strongly recommended to prevent claims like forgery.

6. Preserving the Marital Relationship:

Courts don’t like postnups that push people toward divorce or fighting. Instead, the postnup should support your marriage’s stability. You may need to update your original agreement when big life changes happen after you sign. Let’s say you got a large inheritance or your child has costly medical needs—a Court could find the postnup that leaves out a plan for these changes is outdated and unfair. When in doubt, speak with your spouse about updating your postnup. Consult with separate lawyers to review the revised postnup before signing.

Here's What You May Need to Include in Your Postnup

Clearly list everything —including each spouse’s income, real estate and personal property, retirement accounts, debts, and any business interests. Be honest and thorough about your finances. Don’t risk having this important agreement torn up in court if you and your spouse part ways. Outline what you agree will happen if you divorce: 1) how property would be divided; 2) whether one or both spouses will give up or limit the right to receive alimony (spousal support); and 3) how you will divide debt and if applicable, how you will split business interests/stocks/dividends. Massachusetts courts will NOT uphold postnups that are one-sided or unfair. Both you and your spouse need to take your time in reviewing the agreement. You should each consult with your individual lawyer before signing the postnup.

Life is Unpredictable: A Postnup Can Help Protect You

  • Don’t risk sneaking in extra perks for yourself or avoid telling your spouse the truth about big financial changes. Things like this will come back to haunt you in a court of law when you get divorced or one spouse dies. Instead, make your postnup a win-win for you and your spouse.
  • Contact a lawyer specializing in family law and collaboration to help you and your spouse secure your future in a way that promotes mutual respect and minimizes the chance of a legal battle if you get divorced.

FREQUENTLY ASKED QUESTIONS

How is a postnup different from a prenup?
Timing – a postnuptial agreement is a contract made between spouses about asset division in case of divorce or death after they parties are married, whereas, a prenuptial agreement is a contract made between parties who are not yet married.
Yes, but they’re held to a higher legal standard than prenups, treating them more like separation agreements. Courts scrutinize postnups closely to make sure both parties signed with full disclosure, the postnup does not violate public policy, and that each party had separate legal counsel.
Some people didn’t put together and sign a prenup before marriage or if they did, they may need to address new issues, like starting a business or inheriting money.
Yes, but the court will only enforce it if the waiver is fair at the time of enforcement and doesn’t leave one spouse without enough support, such as a decent place to live.
A postnuptial agreement can protect assets like a house, personal property, and significant future wealth like money gained from a business that a spouse started prior to marriage. Postnups can clarify ownership of property, or require that property (like a home) is maintained in good condition.
  • in writing
  • signed voluntarily
  • Both parties completely disclose their finances
  • Each spouse should have independent legal counsel
  • The agreement must be fair both
    – at the time of signing and
    – at the time of enforcement (in court, usually divorce or probate when one spouse dies)
Yes—many postnups include so-called “infidelity clauses” or other parts based on the spouse’s behavior. Whether a court will enforce this clause depends on how it’s written.
Yes, if the postnuptial agreement still is fair at the time of divorce. Courts evaluate fairness based on changes during the marriage, such as finances, health, and family circumstances.
Yes. Postnuptial agreements can be changed or even undone, but both spouses must agree to the changes or ripping up the postnup. The agreement must be in writing.

Common issues that may invalidate Massachusetts postnups include:

  • Lack of full financial disclosure.
  • The parties to the postnup using the same lawyer.
  • Being pushed or pressured to sign.
  • One-sided terms that end up hurting one spouse (and unfairly benefiting the other) at the time of enforcement.

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