What Are Prenuptial Agreements and What’s the Difference Between a Postnuptial Agreement?

A prenuptial agreement, often called a “prenup” and formally known as an “antenuptial agreement”, is a written contract between two people that is entered into before their marriage.  Antenuptial agreements are primarily used to determine how assets will be divided in the event of a legal separation, divorce, or death of either spouse.

Antenuptial agreements are only valid and enforceable if (1) there has been a “full and fair disclosure” of each partner’s assets and income; and (2) both partners have had an opportunity to consult with legal counsel of his or her choice regarding the antenuptial agreement.

A postnuptial agreement is similar to an antenuptial agreement in that it primarily addresses how assets will be divided in the event of legal separation, divorce, or death, however, a postnuptial agreement is entered into after the spouses have married, rather than before the spouses have married. Postnuptial agreements must comply with the same requirements for an antenuptial agreement. It should also be noted that a postnuptial agreement is presumed to be unenforceable if either spouse files for a legal separation or a divorce within two years of signing the agreement. This presumption may be overcome if one spouse can establish that the postnuptial agreement is “fair and equitable.” 

Antenuptial agreements and postnuptial agreements both require that the agreement must be (1) in writing; and (2) signed in the presence of two witnesses and a notary. In addition, an antenuptial agreement must be entered into prior to the day of solemnization of marriage.