We consulted an expert to understand the nuances behind legal marital agreements, both prenup and after marriage prenup or postnup. Advocate Siddhartha Mishra (BA, LLB), a lawyer practicing at the Supreme Court of India, told us about the nitty-gritties of prenups and postnups, which we bring straight to you.
What Is A Prenuptial Agreement?
To understand what is a postnuptial agreement, it makes sense to begin with the more common one, the prenuptial agreement. Advocate Siddhartha tells us, “A prenuptial contract, commonly known as a prenup, is a written contract you and your spouse enter into before getting legally married. It details exactly what happens to finances and assets during your marriage and, of course, in the event of divorce.” A prenuptial agreement is also called an Antenuptial Agreement or Premarital Agreement, and is usually abbreviated as prenup, which is how it is often used in common parlance. This document should be registered or notarized and legally recognized to be considered a valid document. What is also important to note is that it should be mutually agreed upon, mutually signed through fair means. Neither party should be pressured into signing the document through any unfair means, physically, verbally, or through emotional manipulation. Advocate Siddhartha points out, “Prenuptial agreement in its legal sense is originally a western concept. While love is not a contract and it cannot be, whether occidental or oriental, a marriage is a partnership between two individuals that involves much more.” Since we know that there is a lot that gets into the mix in a marriage, a lot is put at stake. Be it the issues of inheritance, children, family, business, debts, investments etc. What prenuptial agreement and postnuptial agreement do is that they help facilitate the resolution of any issue that may arise in the future. They allow both parties to be on the same page about one of the most important facets of a marriage partnership.
What Is A Postnuptial Agreement?
But what if you figured all this out too late? Are you wondering, can you get prenup after marriage? A postnuptial agreement most commonly abbreviated as a postnup is just that. It is nothing but a prenup after marriage. Like a prenup, after marriage prenup or postnup also details how financial assets and retirement benefits will get divided in case of a divorce or even death. Like prenups, these too look at issues of spousal support or financial assistance, alimony, child support etc. The only major and clear difference being that postnups are laid down and signed after the civil union or the legal marriage of two people instead of doing so before. Many couples do not sign a prenup before marriage, but may feel the need for one after they have been married. This is where postnups or what are also called as ‘prenups after marriage’ come in. But Advocate Siddhartha warns, “The agreement has to be fair, the parties have to fully disclose their assets, and the parties each need their own lawyers. Hiding assets can destroy the purpose of having a peaceful prenup.” Other than property division, spousal support, child custody, sharing of inheritance, business interests, a prenuptial agreement before and after a marriage can include any additional terms that may be of interest to either party. Needless to say, these interests should be mutually agreeable and should be in deference to larger law.
Reasons To Consider Signing A Prenup After Marriage
Advocate Siddhartha says, “One of the biggest myths that gets in the way of planning for a successful marriage, is the idea that prenups imply a lack of trust, or a lack of confidence in the longevity of the relationship.” What we would like to add here is that it is, in fact, the other way round. Prenups, both before and after marriage, display the existence of trust and respect for the relationship by both partners. Only two people who are mature and would prefer to be on the same page about these matters and get them out of the way, will consider legal marital agreements. Advocate Siddhartha says, “One of the most important advantages of prenup before marriage has always been that it forces couples to have a financial discussion before the marriage which helps avoid financial stress in relationships.” What prenuptial agreement after marriage does is it carries a similar advantage. If a couple missed out on this conversation, it is never too late for them to sit down together and have this conversation. He says, “A prenup can save both the parties from carrying on each other’s financial obligations post marriage. If you have been late in doing so, signing a prenup after marriage can do the same. Additionally, custody of children after divorce can be decided. A couple can decide to have joint custody or sole custody. If one of the partners has children from his/her earlier or previous marriage or if both have an inheritance, that can be sorted in the case of a split or even death of one spouse.” These reasons should be enough to persuade the most conservative or a die-hard romantic toward the importance of legalities in a marriage. If they don’t, do keep in mind that, pre marriage prenup or post marriage prenup, having these issues sorted in advance may save a lot of hassle as well as money in legal consultation fee or divorce attorney fee.
When Does One Need A Postnup
It is very clear why marital agreements are a good idea, be it signing a prenup before marriage or getting a prenup after marriage (postnup). But here are a few situations usually when a couple may reevaluate their need for an agreement and therefore, a post marriage prenup or a postnup.
1. You missed out on a prenup
We know the emotions that usually surround a wedding. A wedding is preceded by as well as followed by a romantic excitement of a future together. All energies are directed toward making emotional investments in the relationship and in each other’s lives, throwing a wedding, and planning a future. Conversations around where to live, where to work, children, commitments with new families take precedence. All this may understandably cause matters such as legal agreements and putting down financial responsibilities on paper to take a back seat. But as a couple settles down, they may realize the importance of or feel the need for a legal contract. The postnup allows them the opportunity to do so. Therefore, simply put, if a couple misses out on signing a prenup, but is now considering the importance of having some sort of legal agreement set in place, they may look at a post marriage prenup or postnup.
2. There has been a change
There is a lot that can change in the marriage. New information may surface. This could both be negative and positive information. Take the following for example. Has one of the partners received an unexpected inheritance? Have you just found out that your partner is under extreme debt? Is one of you going through infidelity recovery stages due to a partner being unfaithful recently? Has one of you begun to fear future infidelity from a partner? Such developments may precipitate in a partner the need to establish some sort of legal terms and conditions when it concerns new financial advantages as well as obligations. Getting a prenup after marriage allows them to do that. It makes them sit with a lawyer and a financial adviser and come up with a fair way of dealing with the new issues.
3. You both might be contemplating divorce
Unfortunately though, one of the reasons why you might need a postnup or a couple might be considering a postnup is because they are thinking about a divorce. But there itself, a postnup has a positive function. It can reduce the burden of possible disagreement over such issues if the couple does decide to go ahead with the divorce. This will allow the couple to focus on more pressing matters. This also serves another function. Once financial terms and conditions are out of the way, a couple has more objectivity to look at the real issues in their relationship and work on them. In this way, a postnup may actually help avoid a divorce.
Prenup Vs. Postnup
Can you sign prenup after marriage? Or should you rather get a prenup before marriage? If this question bothers you, maybe a face off between the two would help. As we have come to understand that in their essence, prenup and postnup are the same thing. Their goal is the same. Mostly, even the result is the same. However, there is one clear and a few subtle differences. Let us look at them.
Things To Be Mindful Of When Signing A Prenup After Marriage
In the end, we asked Advocate Siddhartha for things one should be mindful of when signing a prenup after marriage. He pointed out some quick things to keep in mind before laying down a few facts that hint at the importance of considering these agreements. He said, “70% of divorce lawyers say they have experienced an increase in requests for prenups. With more women in the workforce, 55% of lawyers saw an uptick in the number of women responsible for alimony payments, which has led to an increase in women initiating drafting a prenup in recent years.” This goes to show that, married or to-be-married, women must keep some things in mind for a prenup or postnup agreement. He says, “For a woman, especially, it is essential to keep your emotions aside while drafting a prenup. Since marriages are believed to be sacred, it is difficult to weigh them and put them down in contractual terms. Moreover, there is no fixed structure of a prenup, and it can be tailored as per the needs of the couple.” He also says, “A prenup after marriage as well as before marriage must be fair to the bread-winning spouse, as well as the less-moneyed partner, and it should not be draconian in nature. You run the risk of invalidating your agreement if certain factors raise eyebrows. So, it is crucial and important to work with an experienced lawyer who is knowledgeable in matrimonial laws and alimony laws, and a financial adviser to make sure that all assets and liabilities are included accurately.” But is there some homework we need to do before approaching a lawyer? Advocate Siddhartha responds with a resounding yes. He says, “While retaining expert legal advice when drafting a prenuptial agreement is critical, you definitely need to do some prep work before you bring the lawyers into the process. When the time comes to retain legal advice both parties have to be ready with the essential terms of the contract worked out beforehand.” This implies that you need to have some idea about your priorities. When it comes to the future, nothing is ever guaranteed, but having a valid prenuptial agreement in place before you take your vows, and having a postnuptial agreement if you missed out on the first one, can give both of you the peace of mind you need to embark on your new life together.
