Most people, married or not, are familiar with the concept of a prenuptial agreement (or prenup). More and more couples in Massachusetts and elsewhere are choosing to prepare this type of legally-binding contract prior to their marriage in order to ensure a fair distribution of assets in the event the union ends in divorce. However, some couples may consider preparing a postnuptial (or postnup), a similar type of contract but one that is prepared during the marriage, often because of a change in circumstances that involves finance, such as buying into a business, starting a family or investing in real estate.
A prenup typically covers details regarding distribution of assets and liabilities in the event of divorce. However, the couple preparing it is trying to plan for hypothetical situations, which can present challenges as they must imagine possible future scenarios. On the other hand, when preparing a postnup, couples are usually aware of all the factors involved, allowing them to make better-informed decisions. For example, a spouse who starts a business during the marriage may not have covered that eventuality in a prenup, or perhaps did so but now wishes to alter details. In a postnup, the interests of both spouses can be protected by addressing matters such as the nontitled spouse’s share of the business’s value (if any), marital assets that may or may not be contributed as capital in the business and many others.
Couples may also address many other issues in a postnup agreement. A postnup may detail specific provisions for custody and child support (subject to a court’s approval) or spousal support in light of changing circumstances, waiving retirement benefits or excluding specific assets from the marital estate. Often, a couple will choose to draft a postnup to cover a specific matter that has come up in the marriage, to ensure fair treatment and/or to protect individual interests.
An individual wishing to broach the idea of preparing a postnup may worry that his or her spouse will not be receptive to the idea. However, experts point out that having such a document can actually help a marriage, since many couples divorce due to disagreements around finances, and a postnup can clarify many potentially contentious issues. Massachusetts couples considering this option are wise to consult with an attorney experienced in family law. He or she can provide valuable legal guidance through the preparation stages and beyond.