Much thought goes into the process of getting married. So, one should think the same level of consideration should go into getting a divorce. However, spouses are not thinking clearly when a marriage ends, as their emotions are running high, and the complexity of property division is overwhelming. Thus, many couples decide to enter into a marital agreement. This could look like a prenuptial or a postnuptial agreement, and depending on the needs of the couples, one may serve better than the other.
Prenup vs. postnup
To begin, both a prenuptial agreement and a postnuptial agreement are legal documents used to spell out what will happen to the marital assets in the event of a divorce. Both documents can address alimony as well as retirement benefits. The major difference between the two documents is when it was signed.
A prenuptial agreement is entered into prior to the marriage. This is considered a benefit, as it forces the couple to talk about finances before tying the knot. It also allows a partner to secure their benefits in case there is a concern that the other person is entering the union fo financial gain.
A postnuptial agreement is entered into during the marriage. Oftentimes, a couple who decided to forego a prenup may later think it is a good idea. Additionally, if financial gain occurs after the couple gets married, whether through a new business, career or inheritance, a postnuptial agreement can help protect these assets.
Enforceability
On one side, prenups are viewed as being more enforceable that a postnup, as it is less likely to be coercion involved. The courts often presume that the partners are independently signing the document prior to marriage rather than signing after they are married and have mixed assets, meaning coercion is less likely.
On the other hand, one can run into problems with a prenup, as they could be difficult to enforce due to changes in statues and case law. As such, a postnup could be difficult to enforce, as there could be indications of coercion to enter into the agreement.
Divorce is a reality in society today. While many marriages will survive until death do them part, others end because the relationship is broken. Therefore, it is important that spouses understand the mechanisms available to help them navigate the process. By including a prenuptial agreement or postnuptial agreement in the union, the couple could avoid a long and complex divorce.