Prenuptial agreements are increasingly common. A recent Harris Poll found 15% of Americans who are married or engaged report having signed one. Postnuptial agreements are not as common. But now, this once-considered rare legal agreement signed by couples after tying the knot is finding its way into marriages outside of the ultra-wealthy.
A postnup can amend a prenup signed before marriage, for reasons such as a new business, a financial windfall, significant new debt or inheritance, or planning for children from a first or second marriage. A postnuptial can also address issues of infidelity.
A prenup can be a delicate conversation in itself. A postnup can be an even more delicate, out-of-the-blue conversation to have.
“You don’t want it to be like ‘OK I talked to a divorce attorney and here is what we need to talk about.’ That is off-putting and I would not suggest that,” said Sondra Douglas, a family law attorney at Rockville, Maryland-based law firm Stein Sperling.
“I always suggest doing it in a relaxed environment when tensions are not high. Maybe it’s going to dinner. Try to create an environment where it is not confrontational. Sometimes we even role play and go over (the best) tone,” she said.
When infidelity sours a marriage, many couples would prefer to salvage their relationship. Douglas says a postnuptial can set ground rules that may help save the marriage.
“It may be a long-term marriage. They don’t want to, as the saying goes, throw the baby out with the bathwater. They just don’t want to jump to being ready to get a divorce. Postnups are a great option, because we can create a boundary and then move forward,” she said.
A dramatic change in wealth or potential future income for one spouse, such as a business venture that has taken off or an unexpected large inheritance, are also common reasons for postnuptial agreements.
“It is similar to a partnership agreement in the business. How are we going to operate this marriage? What is our road map moving forward? Or it could be a situation where you have a spender and a saver. A lot of times in marriage that is just the natural order of things. So it may be a road map on how you are going to save,” Douglas said.
Stein Sperling refers to a 2024 Fidelity Couples & Money study, which found nearly one in four couples say money is their greatest relationship challenges, and 45% admit to arguing about finances at least occasionally.
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