Why Every Couple Should Consider a Prenup—or a Postnup

The most important thing about a prenup is understanding the terms of your marriage contract absent a prenup in your state. That way you’re in the best position to go, “You know what? That provision or term? I’m not so down with that.” Most of those terms have to do with property, spousal support, and possibly estate planning.

We’ll use community property as an example. I work in California, which is a community property state. (Not all states are.) That means that for people who get married in California, from the day they get married, everything that they earn or create is community property. Every dollar I make is going to be one half mine, one half my spouse’s. And if we split up, they will get that half of the money. There will also be a spousal support component, where if I make more money than my spouse, I may pay them a certain amount every month after we split up.

So the prenup is to revise and clarify those terms. You can say, “I’m going to keep the money that I make, and you’re going to keep the money you make, and that feels better for me.” Or it could be, “I’m going to contribute half of what I make to a joint account. And we’re going to use that joint account to live from, but we’re certainly not sharing every penny.”

Prenuptial agreements also mandate full financial disclosures in order to be valid and enforceable. This involves each party confirming what they own and what they owe.

There are many provisions one might try to put in a prenuptial agreement that would simply not be enforceable in the event of divorce. Those are typically decisions that are made at the time of separation or divorce. One example: At least in California, you can’t put anything about what you’re going to agree to do with child custody. We don’t know what’s going to happen to you between now and then. Because you could try to agree in 2021 to share joint custody of your kids, but then by 2025, you could be incapable of caring for your children for whatever reason.

There are some other terms I’ve had people ask for in a prenup that I won’t put in there because they’re not legally enforceable. Some people want conditions like “If he cheats on me, I get an extra $50,000.” Those won’t hold up in court in the event of a divorce.

A lot about dividing up assets has to do with homes. Sometimes the partner who has more money has a home, and the couple is going to be living in that home when they get married. And maybe the partner who’s not the breadwinner is going to be putting time and energy into decorating that home and making it look beautiful. They might say, “Well, gee, this isn’t my house, but I’d like some kind of a buy-in as time goes on, say, every year or every five years, so that I feel that we are a real partnership. So if we ever did split up, I would get half of this house or half the value and appreciation of this house.”

“While you can always change a will—that’s why you see people in the last days of their lives all of a sudden devote their entire estate to their caregiver—you can’t change a prenup.”

Another thing that I’ve seen come up again and again is high-value gifts. People buy gifts for each other during marriage. If it’s not something like a ring or a piece of jewelry—let’s say it’s raw diamonds or a piece of art or a Bentley—and the partner giving it says, “Oh, baby, this is for you. It’s a birthday present.” And then they get divorced and suddenly that partner is like, “No, no, no, no, this wasn’t a present. Of course I’m not going to buy a $1 million Basquiat for you for your birthday. I bought this for us. This was an asset that I was buying for the community.” We have seen more and more cases like this, where one partner gave a gift and then later contends that it was bought for investment purposes and wasn’t really a gift. So what we will put in prenuptial agreements a lot now is that if a gift is given, it has to be accompanied by a one-page acknowledgment that says, “Under the terms of our prenup, I am denoting this as a gift.”

I’m also starting to see a lot of estate terms or provisions regarding wills. While you can always change a will—that’s why you see people in the last days of their lives all of a sudden devote their entire estate to their caregiver—you can’t change a prenup. If an older person is marrying a younger person, the older person may not want to agree that if they get divorced, they’re willing to give the younger person half of everything they earned or created during the marriage. But they might be like, “If I die and we’re still married, even though I have adult children from a former marriage, I’m going to put it in our prenup that you can continue to live in my house for the rest of your life. And then when you die, it’ll go to my kids.” Or the younger or healthier spouse might want to put that in the prenup, knowing that their partner could always change their will.

Yes. You can do it when you’re married as a postnuptial agreement. Here’s an example of when that’s useful. Let’s say that during your marriage, a family member dies and you get a huge inheritance. That’s going to be separate property; the money will belong to you alone. But say you want to make sure that anything you purchase with that money is going to be part of the community. You can put that in your postnup.

“You want to make sure that you’re not making a postnuptial agreement in place of what would otherwise be a divorce settlement.”

The most important thing I want to mention for postnuptial agreements—and as I mentioned before, this applies to prenuptial agreements as well—is that there must be full disclosure so that nobody enters into one of these agreements without fully knowing what the assets are. This is important so that nobody can say thirty years from now, “I would never have signed that in 2021 if I had known that the stock was worth so much.” You have to provide full and adequate disclosures of what you have and what its value is prior to any transmutation of property.

You want to make sure that you’re not making a postnuptial agreement in place of what would otherwise be a divorce settlement. Let’s say he cheats on you, but he’s so sorry and he loves you so much. And you say, “That’s fine, but I want to do a postnuptial agreement that says that if we get divorced, our house—which has always been a joint asset—will go only to me.” And he says, “Yes, yes. I love you so much. I feel so terrible about cheating on you. Let’s write that up.” So you write that up and he transmutes the house into being your separate property. And then a month later you go, “You know what? I still hate you, and I’m breaking up with you.” That could make the postnuptial agreement invalid because it would seem as if you had just been working a divorce agreement into a postnup.

Attorney Laura Wasser is an author, an entrepreneur, and a family law expert. She is the founder of the online divorce platform It’s Over Easy, which simplifies the divorce process online, empowering couples to reclaim control without needing expensive attorneys. A graduate of the University of California, Berkeley, Wasser earned a law degree from Loyola Law School. In 2013, Wasser authored the bestseller It Doesn’t Have to Be That Way: How to Divorce without Destroying Your Family and Bankrupting Yourself.