What You Need to Know about Prenups and Postnups

Jul 8, 2021 | Sara Khaki

The topic of pre- and postnuptial agreements can feel very overwhelming, and a lot of preconceived notions make these contracts very unclear for many couples. Here at Atlanta Divorce Law Group, we like to go after the stigmas, tackle them, and bring some light to them.

What is a Prenup?

A prenuptial agreement is a negotiable instrument (i.e., a contract between you and your future spouse) about what’s going to happen in the event that the marriage does not work out. These agreements answer questions about which assets and debts will be subject to division as well as how to divide that marital property.

In this instrument, you can also decide whether there’s going to be spousal support and, if so, how much and for how long. What you cannot include in a prenup is anything having to do with child custody or child support.

What is a Postnup?

Just because you didn’t enter into a prenup before you got married does not mean you can’t have a negotiable instrument that determines what happens in the case of divorce once you are married, known as a postnuptial agreement. What a lot of people don’t know is that a postnuptial agreement does a lot of the same things as a prenup, but it’s done after the marriage. While neither agreement can discuss what will happen in the case of child custody and support, it can discuss division of assets, alimony, and any other marital liabilities that need to be split up.

When to Get a Pre- or Postnup

In regard to timing and planning, it’s advisable to start drafting a prenup about six months prior to marriage. The last thing you want to do is call us two weeks before the wedding and say you need a prenuptial agreement. The court may interpret that as duress, meaning the contract may not be enforceable for being too close to the wedding. In preparation for a prenuptial agreement, if you’re working with a financial planner, you need to have them print out your net worth so you can present this to the other party to accurately illustrate assets and debts.

Otherwise, married couples can enter postnuptial agreements when they feel the time is right. Our team recommends drafting a postnup at a time when you and your spouse are in a good place so you can approach this in a very thoughtful and loving manner. This can help keep the cost of any divorce down, because you’re not coming to the end of a marriage trying to separate things from a place of being hurt.

Working with Legal Counsel

While many couples ask if one of our attorneys can represent both parties, each party should have their own legal representatives. Once you and your spouse have decided all the terms of your post- or prenup, you may ask an attorney to draft a formal agreement, but a lawyer can’t sit down with each of you and advise you separately.

You should hire one attorney to write the agreement and another to review it with your spouse. Doing so makes the agreement more enforceable. Our lawyers can advise you by asking about what you are trying to protect versus what your spouse is trying to protect. Once an attorney gives you the advice, it’s up to you to make those decisions. Call our firm today for the help you need.

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