Who Needs a Postnup? (You May Be Surprised!)

Any married couple will agree that relationships change over time - sometimes for better, sometimes for worse. Postnups are growing in popularity because they take into account the changes that couples may experience during their lives together. You may be surprised to learn how many people can benefit from a postnup. 

What Exactly is a Postnup?

Just like a prenuptial agreement, a postnup is an agreement that outlines the division of assets and rights to spousal support in the event of divorce. It can also be an estate planning tool if you want to leave your assets to someone other than your spouse (i.e. children, grandchildren, etc.).

What’s Not Included in a Postnup? 

What typically does not get included in a postnup (or a prenup) are provisions regarding the custody and support of children. Those issues are determined according to the best interests of the child(ren) and cannot be agreed to by the parties in advance.  

Are They Enforceable? 

The short answer is yes, but state laws do vary. In New York, a validly executed postnuptial agreement is enforceable. To be validly executed, it must be in writing; signed voluntarily and without duress, and with full knowledge and understanding of the waivers made in the agreement; and the signatures must be properly acknowledged by a notary. Also, a postnup executed in New York State with the proper drafting language should be enforceable in all fifty states. 

Who Needs One? 

People tend to get married later in life than in previous generations, and have more at stake financially when they say “I Do.” Even couples who start off with a prenup may consider a postnup, because prenups can become outdated as people’s lives evolve and change. Of course, every marriage is different, but if you fall into one of the categories below, you’re a likely candidate for a postnup. 

Couples with Children 

As family law attorneys, we see a lot of divorce cases involving children. While the presence of children doesn’t automatically trigger the need for a postnup, it can definitely complicate the finances of a divorce. For instance, if you put a career on hold to take care of children, a postnup can help protect your future financial security. Or, if one or both of you has children from a previous relationship, a postnup can help protect your wishes regarding the treatment of your assets both upon a divorce and in the event of your death. Without a prenup or postnup, even if you have a Last Will and Testament bequeathing everything to your children, a former spouse may have grounds to contest the will down the road. In New York, for example, your spouse is entitled to a minimum share of your estate upon your death. A postnup can help ensure your wishes are carried out. 

Entrepreneurs and Business Owners 

If you’re an entrepreneur, or married to one, you definitely want to consider a postnup. A record number of new businesses were created during the pandemic, and more and more people are impacted by entrepreneurial pursuits. The burden of growing a small business or startup often falls on both spouses, and defining the business value can be a highly subjective and complex process. Defining those rights and interests up front can save couples a small fortune in the event of divorce and can even relieve some pressure on the relationship as the business and family grow (hopefully together). 

People Who Are Sure Their Love Will Last Forever

Couples enter into marriage with the expectations of forever, and can view prenups and postnups as a declaration of doubt. You may indeed end up being one of those couples who stay happy together until death do you part. But you may also experience some hardships or changes, and a postnup can help provide additional financial security. Preparing for the worst case scenario - even if you don’t think it will ever happen - is a smart way to protect yourself, your assets, and your sanity. (And won’t it feel great to prove the postnup wrong when you celebrate your 50th anniversary?!)

At Artese Zandri, we help clients understand their rights and obligations to income, assets and children upon marriage and in the event of divorce. Feel free to contact us at consultations@artesezandri.com to discuss your own situation.