14 Sep Is There Really Such Thing as a Post-Nup?
Every summer when wedding season is upon us, we see articles about prenups popping up. While it isn’t as glamorous as picking out flowers or the menu, it is a significant part of many people’s big day. Fewer articles discuss post-nups. What exactly is a post-nup? A post-nup is an agreement entered into after marriage that defines the couple’s financial rights and responsibilities in marriage and in the event of death or divorce. Post-nups, like prenups, are useful financial and estate planning tools. They can address many of the same topics listed in our article entitled “You (or Your Fiancé) Want a Prenup: 10 Important Topics to Discuss.” So why would someone get a post-nup? The following are a few situations in which people might benefit from a post-nup.
- Not enough time before the wedding
A post-nup, like a prenup, requires time and effort from both people. Typically, for a prenup, we encourage clients to meet with us four to six months before the wedding to allow ample time to discuss their goals for the agreement, to draft and revise it, and to give them an opportunity to review it carefully before signing. Since the months before a wedding date can be chaotic (wedding planning can be a full time job!) we prefer to account for extra time in case meetings are delayed or revisions are required. We also prefer, as do the clients, that the agreement is signed a few weeks before the wedding so that they can enjoy their special day without worrying about the details of the agreement. That being said, some people have relatively short engagements, and some people delay getting started with the process for having a prenup until the last minute because of discomfort. If there is not enough time for a prenup before the wedding, a post-nup is a good alternative. Since they will not be under the pressure of wedding planning, they can come to an agreement in their own time.
- Change in careers
As mentioned above, a post-nup will define financial rights and responsibilities, such as how community property will be divided in the event of death or divorce, the duration and amount of spousal support, if any, and issues regarding estate planning. If a spouse is changing careers and will be earning less income, he/she may want a post-nup to clarify his/her rights in the event of a divorce. For example, if a spouse quits their job to raise children full-time, they may want assurance that they will be protected financially in the case of death or divorce.
- Concern over spending
Another common reason why people get a post-nup is concern over their spouse’s spending. In California, absent a premarital agreement, income earned and liabilities incurred by either spouse during the marriage would be community property (with certain exceptions). If a spouse is concerned about his/her partner’s spending, such as risky investments, and the possible debts that may accompany it, he/she may want a post-nup protecting his/her share of the community property.
- Change of circumstances
If a lot of time has passed, or circumstances have changed, since a couple signed a prenup, they may want to draft a post-nup to reflect these changes. With a prenup, a couple decides how they wish to define certain legal and financial rights. It is possible, however, that the agreement does not cover every issue extensively, or that circumstances change warranting a revised agreement. For example, if a couple decides to relocate to take advantage of a career opportunity for one person, and the move may negatively impact the other person’s career opportunities, they may want to discuss how those changes would impact their financial rights and responsibilities. Or if a couple acquires community property and/or debts that they did not account for in their prenup, they may want a new agreement addressing how to divide these assets and/or debts in the event of death or divorce.