What’s the Distinction Between a Prenup & Postnuptial Settlement?
People are more familiar with the idea of a marriage agreement (prenup) than a postnuptial agreement (postnup). Basically, marriage only refers to an agreement that was made before a marriage, while marriage refers to an agreement that was made after the marriage. At Seattle Divorce Services, our marriage contract attorneys manage the creation, modification, and execution of both documents.
Complications with prior agreements
One problem we often run into is that a marriage agreement may not be effective if it is signed too close to the marriage date. To be effective, that is, to have it later confirmed by a court, it must be clear that the agreement was signed voluntarily and with full consent. Informed consent means that each party should have gone through the agreement with an attorney before signing it.
As for the timing, the presumption is that if it was signed shortly before the marriage date, it could have been forcibly signed. Coercion doesn’t mean being forced to sign, but it does refer to the idea that with the upcoming marriage, the party might feel they needed to sign it in order to avoid any problems with the wedding.
Very often when people contact us about a marriage agreement, the wedding is just weeks away. That’s far too close to draft, review, and sign off without creating enforceability issues. In these circumstances, we will often advise the customer that the arrangement should be made after the wedding instead. If we finalize the agreement after the wedding, there is no time pressure and the parties can sign when they feel ready.
When is a postnuptial agreement drawn up?
Sometimes marriage contracts aren’t just postponed preparation. A couple can enter into an agreement at any time during their marriage for a variety of reasons. This can include converting common property to separate property or converting separate property to common property. For example, a partner may have received an inheritance (which is usually treated as a separate property) and wants to make it clear that the inherited property belongs to both.
Applying the collaborative process to the creation of marriage and postnuptial agreements
Another thing that we often recommend is using a collaborative process to negotiate the agreement. Too often one partner goes to a lawyer and has a prenup drafted and then presents this agreement to the other partner for signature. This generally means that the agreement has been worked out according to the wishes of the first partner and is primarily designed to protect those partners. This creates an inherent conflict that requires the second partner to come back and negotiate anything they would have liked to change. This type of conflict is not a good way to get married.
In a collaborative process, both lawyers can meet with both parties and ask questions about what the couple is trying to achieve with the agreement. If there are disagreements, they can be ironed out before starting the design. Then, after hearing from both parties, attorneys can work out an agreement that reflects the actual terms that the parties discussed and agreed upon. This way of working together in reaching an agreement is also a much better foundation for working together throughout the marriage.
Let our Seattle family law attorneys help out with your prenup or postnup today!
No matter what arrangement you want to make or what stage of the process you are in, our prenuptial law attorneys are happy to help. Contact us and make an appointment today for your consultation.