Can You Sign a Prenup After Marriage?

Patrick Crawford | March 28, 2023

When roughly 50% of marriages find their way to divorce court and a typical marriage is eight years long, prenuptial agreements are very common. Second and third marriages are even less likely to survive, statistically speaking. If you’ve been divorced before, you can appreciate the value of having a prenup for the same reason you have health insurance or a car alarm. Plenty of happy couples opt for both pre- or postnuptial agreements today.  

 

A Prenup After Tying the Knot

In short, to get straight to the point, yes, you and your spouse can sign a “prenup” after you get married. At that point, it is not called a prenup; it’s called a postnup. Essentially, it is the same document, though. If you are already married and you do not have a signed, valid prenuptial agreement, you can still safeguard your assets with a postnuptial agreement. A postnup functions the same—it is a contract stating how a married couple will split their assets and liabilities in case of a divorce. 

 

Should You Get a Postnup? 

You have nothing to lose by reaching out to a prenuptial agreement attorney. Book a free consultation to learn how an agreement of this nature may pay for itself. Even if a dissolution does not appear to be looming, a postnuptial agreement could be a good investment if: 

• You have a non-traditional estate plan in place 
• You have children from a previous marriage
• You have recently experienced a large increase in assets
• Your spouse has recently experienced a large increase in debt or liabilities
• You have separate property, such as an inheritance
• You are a business owner 
• You stand to inherit a large fortune
• There is a significant difference in the liabilities or assets between you and your husband or wife
• You are simply concerned about your property for other reasons

 

What Makes a Postnuptial Agreement Valid in Maryland?

While your postnuptial agreement does not need to specify every detail of a divorce, it is ideal if your agreement addresses all the divorce-related issues. It is easier, cheaper, and less stressful to go through these issues when both parties are getting along and on good terms. Having said that, postnuptial agreements are valid and legal if they meet standard contract requirements. These “contract basics” include:

• The agreement must be written
• Neither spouse defrauded the other into compelling him or her to sign
• Full and complete disclosures must be given by both parties regarding all issues relevant to the agreement
• The postnuptial agreement is reasonable and fair to both parties (meaning, for example, the custodial parent can not agree to not receive legally-mandated child support payments)
• If there was “consideration” from both parties (meaning both spouses have to perform a certain duty, i.e., the agreement is not one-sided)
• If only one spouse was represented by an attorney before the agreement was signed, this could also affect its validity.

 

Furthermore, it is crucial to talk to an experienced Annapolis marital agreement attorney to be completely sure that the contract is acceptable under State of Maryland law. If the postnuptial contract contains, for example, unfair elements or illegal clauses, it can be challenged. This defeats the whole purpose of creating the document in the first place. 

In divorce court, a judge might dismiss your postnup entirely if it does not meet the legal requirements set forth by the State of Maryland. Moreover, marital agreements can not waive child support, as noted above, but they can, however, arrange for alimony (or spousal support).

 

When Can You Create a Postnup?

A postnuptial agreement can be executed any time after you say, “I do.” Many couples draw up a postnuptial agreement when they do their estate planning. Another common time we see people creating a postnup is when there is a significant change (moving, a death in the family, a child is born or adopted, etc.). From a legal perspective, a postnuptial agreement can be done after one day of marriage or after 50 years of marriage—it doesn’t matter.

Can Couples DIY a Postnup in Maryland?

Yes, technically, it is possible to write your own postnup without a lawyer. You might see generic postnuptial agreement form templates for sale online. If your situation is simple and straightforward, involving limited assets, and you executed the agreement correctly, something like this could be a solution for you. However, most couples are looking for a marital agreement because something highly valuable is at stake (an inheritance, their children from the first marriage, a business that has been in the family for four generations, etc.). It never hurts to get a free consultation from a knowledgeable Annapolis family lawyer before deciding.

 

Understanding Types of Postnups

There are three types of postnuptial agreements to be familiar with:

• “The Asset Divider” – This type of postnup lays out how the couple would like to split their assets in the event of a divorce. If applicable, it may outline how alimony or maintenance payments will be handled as well. This is probably the most common type of after-wedding marital contract we see at our Annapolis postnup law firm. The assets addressed by this type of postnuptial agreement can include community property and/or assets each spouse had prior to the marriage.
• “The Pre-Separation Agreement” – This type of postnup is typically put together by a married couple that is anticipating a separation and/or divorce. It may even be a sort of template for a separation agreement. These thorough agreements spell out how child support and custody, spousal support, asset and liability division, and anything else in between will be handled in the event of divorce. A postnup like this can later be an addendum in the divorce decree.
• “The Inheritance Waiver” – This type of postnup involves one spouse waiving their rights when the other dies. The State of Maryland has a law in place that protects one spouse from being disinherited by the other. In Maryland, this is known as “the elective share,” and this law states that the surviving spouse is entitled to receive a set amount of the deceased spouse’s estate. For example, let’s say, the wife is a self-made millionaire with a number of streams of passive income, and her husband has an hourly wage job. The husband feels that his children from his first marriage would benefit most from receiving his full estate. The wife is financially independent, and she could agree to sign this type of postnuptial agreement to ensure her husband’s kids get his full estate. Typically, this type of postnup is designed to supersede a last will and testament.

 

Benefits of a Postnup Agreement 

While the pros of a postnup are basically the same as a prenup, here are ways in which either of these marital contracts can protect you: 

• Don’t worry about having to deal with “divorce stress” later. Divorces are one of the most stressful life events for a reason. You can skip much of that anxiety with a postnup (the anxiety of paying for expensive litigation or arbitration and having the process potentially drag on for years).
• Children from a previous marriage may be best protected with a marital agreement in place
• If you have a family business that has been passed down from generation to generation, a postnup can ensure that your business goes to your family’s next generation instead of to your spouse. 
• If your spouse has a significant amount of debt from, for example, a gambling addiction, a postnup can safeguard you from being held responsible for your spouse’s gambling problems.

 

Open the Avenues of Communication

One resource points out that the process of meeting up with a lawyer to draft a marital agreement can get couples to talk about difficult subjects. People like marital mediators can draft a “private document” between spouses in which they informally agree to certain terms. While this avenue creates more of a plan than an action, it might be the right fit for some couples. Since financial stress is a huge cause of divorce, this option could help prevent a divorce if you feel your spouse is avoiding these tough topics.

 

A Brief History of Postnup Agreements

Postnups were typically not considered valid or enforceable prior to 1970 in the US. Judges felt that postnups (even prenups) encouraged divorce, so they were viewed negatively. Considering the institution of marriage is as old as time, this makes postnups very new! Divorce became more common as women entered the workforce in the 1970s. At that time, states started initiating no-fault divorce laws. This opened the door for postnuptial agreements to be viewed in a different light. 

 

Call an Annapolis Postnuptial Agreement Lawyer 

The Law Office of Patrick Crawford would be happy to assist you with any and all family law issues in Maryland, from postnups to child support and custody. To discuss your situation with Mr. Crawford and find out if a pre- or postnuptial agreement is a right for you, call us at 410-694-7348 or use our online contact form.