Prenup vs postnup: What’s the difference? | Family Law

Published on October 5, 2023 · 4 min read

Prenups and postnups sound very similar, and even someone unfamiliar with the terms may determine that the timing of each differs. But while prenuptial and postnuptial agreements are both legal contracts that govern how a couple will address their finances in the event of a divorce, there are a number of key differences between the two. This includes not only when they may be created but also how and the strength of their enforceability.

If you’re considering a prenup or postnup but aren’t sure which one, if either, makes more sense for your relationship, this article may help. We discuss the similarities and differences between a prenup and a postnup, which one might be a better fit for you and how an attorney may help.

Similarities between a prenup and postnup

Prenups and postnups are both legal agreements that dictate how a couple will handle certain financial matters and divide their assets and debts if their marriage ever ends in divorce. Prenups and postnups are similar in the topics they cover, commonly addressing the following:

Property division
Debt allocation
Spousal support or alimony
Business interests
Any other topics that don’t violate law or public policy

Prenuptial agreements and postnups are also similar in terms of the benefits they may provide. For example, both may provide:

General asset protection
Preservation of family wealth and inheritance rights
Clarity and clear guidelines regarding financial rights and responsibilities
Stress reduction and peace of mind due to the knowledge that a plan is in place
Greater transparency and communication between the parties
Reduced time and expense in the future in the event of a divorce

Primary differences between a prenup vs postnup

The decision of whether to use a prenup or a postnup is unique for each marriage. However, here are a few examples of when you might consider using one over the other.

When to get a prenup

A prenup might be worth considering when you or your partner aren’t yet married and:

Currently have significant pre-marital assets or family inheritance rights that you want to protect
Want to clarify certain expectations regarding your respective financial rights and duties prior to getting married
Have significant debts or liabilities that you want to keep separate
Have existing business ownership rights and interests that you want to protect

When to get a postnup

Alternatively, you might consider a postnuptial agreement if:

You and your spouse are already married and want to protect your financial interests
You or your spouse have acquired significant new assets or inheritance rights since the date of your marriage
There have been instances of infidelity or financial mismanagement that you want to address
You want to revoke or amend a previous prenup that was executed between you and your spouse

Do I need an attorney to create a valid prenup or postnup?

In most scenarios, there’s no legal requirement that either party must hire an attorney to create a prenup or postnup. However, in many cases, doing so may be beneficial.

For example, an attorney may provide an advantage by:

Providing legal experience in family law and agreement drafting
Helping you understand state-specific rules and considerations
Explaining the pros and cons of a prenuptial or postnuptial and advising you on which might be a better option for your situation
Ensuring compliance with applicable legal requirements
Reducing the time and effort needed to draft and execute the final agreement
Negotiating key provisions with your partner or their legal counsel
Providing you with independent legal counsel and reducing the likelihood of any power disparities between you and your partner

When to speak with an attorney

Prenups and postnups are binding legal contracts that may have significant future implications on your relationship. Whichever option you choose, it’s important to take steps to ensure that your agreement is comprehensive and legally sound. For many, that includes working with an attorney.

Additionally, an experienced family lawyer might be especially helpful when you or your partner have significant assets or debts or if your partner is already represented by legal counsel.

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