Insight

Pre and Postnuptial Agreements

Family law lawyer Kelly Scott explains what both prenuptial and postnuptial agreements are and how they can impact a divorce.

Cartoon image of hand placing puzzle piece between two other pieces
KS

Kelly A. Scott

December 17, 2023 11:00 PM

By now, most adults have probably heard the term “prenuptial agreement” at one point in their lives. Sometimes referred to as an “antenuptial agreement” or “premarital agreement,” a prenuptial agreement is an agreement entered into between intended spouses before they are married. Said agreements set forth the future spouses’ legal rights and obligations in the event of a future dissolution of marriage and, sometimes, in the event of a death of one of the spouses while married. Most times, those legal rights and obligations are different than what would otherwise happen under the law in the absence of a prenuptial agreement. Similarly, there is a perhaps lesser-known version of such agreement that is entered into after spouses have already married called a “postnuptial agreement.” The concept is generally the same but for the timing, and in some states, there are different standards by which the enforceability of a postnuptial agreement is judged.

The recognition and enforceability of prenuptial and postnuptial agreements have greatly expanded in the past 30-40 years, especially with the modernization of divorce, including the elimination in most states of the requirement that fault must be proven before a divorce will be granted. Today, all states recognize the enforceability of prenuptial and postnuptial agreements, at least those that meet the state’s procedural requirements and otherwise comply with general contract law. While the area of law governing prenuptial and postnuptial agreements is quite complex, and procedural requirements at times drastically vary from state to state, there are certain overlapping principles that generally apply. First, the agreements must be reduced to writing. Second, in the case of a prenuptial agreement, they must be executed in advance of the marriage, and the intended marriage must, in fact, occur (otherwise, the contract is null and void). There is often a requirement that each party be afforded an opportunity to consult with independent counsel and that each party prepare a financial disclosure, typically then appended to the final, executed version of the agreement. Finally, there is usually a requirement that the agreement not include provisions that otherwise are against public policy. For example, in many states, the parties are not permitted to include provisions in their prenuptial agreement as to how custody of children will be determined in the event of a divorce nor what the financial support will be for those children.

Generally speaking, a prenuptial agreement will be enforceable regardless of where the parties reside in the future, assuming such residence remains in the United States. In other words, if spouses enter into a prenuptial agreement in New York and later move to Connecticut, Connecticut courts will give full faith and credit to the terms of such agreement so long as it meets applicable standards and requirements. It is for the foregoing reason that most prenuptial agreements, like many other non-marital contracts, contain a choice of law provision. While the enforcement of choice of law provisions is itself a complicated and nuanced area of the law beyond the scope of this article, such provisions are also generally upheld so long as there is a rational basis for the chosen law.

There is less uniformity when it comes to how and whether postnuptial agreements are enforced. Some states judge postnuptial agreements under the exact same standards as prenuptial agreements. Other states subject postnuptial agreements to stricter scrutiny or standards, in large part because those states have determined that the bargaining power between parties is far different when they are already married, and possibly already have children of such marriage, than when they have yet to say “I do.” Still, other states have very limited circumstances in which a postnuptial agreement will be enforced. For example, there may be a minimum net worth requirement for both parties and/or a requirement that the marriage continue for at least a certain number of years after the execution of the postnuptial agreement.

Protecting already acquired assets remains one of the common reasons parties enter into prenuptial or postnuptial agreements. However, the utilization of such agreements has become far more commonplace in recent years and is no longer seen as a tool to only protect the existing substantial assets of one spouse. Instead, many people enter into such agreements now to also protect the future acquisition of income and assets. That might mean that one of the intended spouses expects to receive substantial inheritances or business assets from his or her family during the marriage in the future. Or it might mean that one party, or even both parties, has substantial earnings potential in the future based on his or her career and wants to protect those future earnings and/or provide for the specifics of how those future earnings and assets acquired from same will be treated in the event of a future divorce.

Prenuptial and postnuptial agreements can vary in scope and should be fine-tuned and specific to the individual circumstances of the contracting parties. If you are contemplating entering into a prenuptial or postnuptial agreement, the first place to start, and the sooner, the better is to contact an experienced attorney well-versed in family law matters in your state. These agreements can quite literally change the course of your financial future and should be approached with diligence, nuance and sensitivity.

Headshot of female lawyer with long blonde hair and glasses

Kelly A. Scott practices in Pullman & Comley’s Family Law group and represents clients in all areas of matrimonial and family law. She has extensive experience representing clients with high-net worth and complicated assets, both in the preparation of prenuptial/postnuptial agreements and in dissolution matters. Kelly is well versed in child custody issues and is a certified Guardian ad litem.

Headline Image: iStock/VectorMine

Related Articles

Reality Check: Is a Prenuptial Agreement Right for You?


by Michele M. Jochner

Suggesting a prenuptial agreement can be uncomfortable and viewed as an expectation that your marriage will fail. Yet, it can be a wise step in planning for the future and eliminating the risk of potentially costly litigation. Here’s what to consider in making that decision.

Bride and groom figurines standing on prenuptial agreement papers

IN PARTNERSHIP

Prenuptial Agreements: A Primer


by Alexis Connors

Family law lawyer Alexis Connors offers insight into what a prenuptial agreement is, what it covers and why couples should consider one before entering into marriage.

Two gold rings and paper cutouts of a couple over prenup papers on clipboard

IN PARTNERSHIP

Tips to Help Avoid...Happily Ever After Ending Sooner Than Expected


by Frances H. Krasnow

A little preparation in a marriage goes a long way. By exploring prenups, postnups and estate planning, spouses can alleviate many financial stressors that may lead to a divorce.

Tips to Help Avoid a Divorce

The Hague Convention and International Custody Battles


by Alexandra Goldstein

One family law lawyer explains how Joe Jonas and Sophie Turner’s celebrity divorce brings The Hague Convention treaty and international child custody battles into the spotlight.

Man and woman celebrities wearing black and standing for photo

Filing For Divorce in North Carolina


by Melody J. King

Family law lawyer Melody King answers some of the most important questions individuals may have about filing for divorce in North Carolina.

Illustration of man and woman on paper that has been torn apart

Presumption of Parentage


by Lauren Marciano

Family law lawyer Lauren Marciano discusses a pending landmark Supreme Court decision in Oklahoma that will impact LGBTQIA+ couples seeking assisted reproduction.

Child holding a teddy bear with two women sitting with her

High-Net-Worth Divorce


by Gretchen S. Knight and Jill Spevack Di Sciullo

Many issues can arise during divorce proceedings, particularly for affluent couples. Outlined below are some of the best practices for the most common concerns.

Spouses standing in doorway of home having argument

IN PARTNERSHIP

Brinkley Morgan: Experienced in Marital and Family Law


by Brinkley Morgan

Florida-based law firm Brinkley Morgan's Family Law attorneys provide legal counseling and representation in marital and family law. Read more about their services below.

Brinkley Morgan Leads in Marital and Family Law

IN PARTNERSHIP

"Clear Eyes, Full Hearts, Can't Lose": 10 Keys to a Successful Mediation


by Christina Patierno, Esq.

Family law lawyer Christina Patierno, Esq. details steps to take for a successful mediation and how remaining focused and optimistic is key.

10 Keys to a Successful Mediation

IN PARTNERSHIP

Leading Family Law at Gladstone, Weissman, Hirschberg & Schneider, P.A.


by Gladstone, Weissman, Hirschberg & Schneider

Attorneys at Gladstone, Weissman, Hirschberg & Schneider, P.A. are known as Family Law experts who nurture client relationships by focusing on service and success.

Leading Family Law Experts

IN PARTNERSHIP

Cryptocurrency and Divorce


by Crystal Espinosa Buit

One lawyer explains how cryptocurrency, the fastest growing investment form, can impact assets in a divorce and why it should not be ignored in divorce proceedings.

Pixelated image of paper money bill

IN PARTNERSHIP

The Parenting Plan


by Derren Ciaglia

Co-parenting considerations should always be taken into account when negotiating Parenting Plans in divorce or paternity matters.

Woman in car looking through window at man hugging child

Divorce in Florida


by Hugo E. Acebo

A Florida family law lawyer highlights the important steps each party should take when facing the complexities of divorce, particularly when faced with decisions surrounding the children.

Painting of father walking with two children

IN PARTNERSHIP

MEDIATION: A Particularly Powerful Tool in Family Law


by Susan Latham Steffey

Mediation can be the solution to many questions surrounding family law disputes. One lawyer explains several of the benefits to family law mediation.

Two women and man having discussion with purple background

IN PARTNERSHIP

The Unwritten Rules of Family Law


by Aaron D. Bundy

While there are many skilled attorneys, only veteran Family Law attorneys can know the best rules of thumb for specific circumstances that will help their clients.

Three Rules to Assist with Family Law Matters

Five Tips for Business Owners Facing Divorce


by Brittany A. Brown

When married couples have entered into joint business ventures find themselves facing divorce, it is important that they heed these five steps to ensure amicable resolution.

People standing in opposite circles forming Venn diagram

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Presenting the 2025 Best Lawyers Editions in Chile, Colombia, Peru and Puerto Rico


by Jennifer Verta

Celebrating top legal professionals in South America and the Caribbean.

Flags of Puerto Rico, Chile, Colombia, and Peru, representing countries featured in the Best Lawyers

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Is Premises Liability the Same as Negligence?


by Jeremy Wilson and Taylor Rodney Marks

In today's age, we are always on the move, often inhabiting spaces we don't own. But what happens when someone else's property injures you or someone you know?

A pair of silhouetted legs falling down a hole with yellow background

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

This article is a part of the Best Lawyers Family Law Legal Guide. Read thought leadership from recognized lawyers and navigate a list of all honorees in the associated practice areas.

Explore the Legal Guide