A rocky marriage can feel overwhelming, and when couples start looking for solutions, legal agreements aren’t usually the first thing that comes to mind. But a postnuptial agreement, also commonly called a postnup for short, can sometimes bring security to a struggling relationship. While a postnup isn’t magic, it can help couples clear up miscommunications and redefine expectations moving forward to alleviate tension. The following article discusses how.
What Is a Postnuptial Agreement?
A postnuptial agreement is a legally binding contract signed after marriage that outlines financial and property arrangements, specifically how assets, debts, and monetary responsibilities will be handled during the marriage and beyond. Similar to a prenuptial agreement, which is signed before marriage, a postnup establishes boundaries so the couple is not confused about what is expected of each other.
It can also cover what would happen should the couple divorce, from property division to spousal support. These provisions can make some couples nervous, as they may feel like they are hedging their bets because they are not 100% confident that their marriage will survive.
That’s not realistic. There are never any guarantees in life. However, having some of the “what ifs” covered can help a struggling couple.
When a Postnuptial Agreement Makes Sense
Postnups can be helpful when a significant life change impacts a marriage. These can include career shifts, inheritance, or a change in financial priorities. Postnuptial agreements are similarly valuable for couples who may have considered divorce but want to take precautions while they repair their relationship. Again, this can be particularly advantageous to a spouse who feels financially vulnerable.
For example, for many couples, money is a major source of marital conflict. According to one study, money is among the three leading causes of divorce. Fights over money can involve numerous factors: imbalances between higher and lower (or non-earning spouses), differences in values, and keeping secrets about money, which are described as financial infidelity.
In this or other instances, postnuptial agreements allow the couple to shift their focus from what could happen to what’s happening now. Doing so enables them to focus on themselves as a unit and the health of their relationship.
Changes in Career and Financial Priorities
Plans often change over time. So, even if a couple has a prenuptial agreement, but situations have changed since they signed it, and one or both spouses are no longer comfortable with the terms of the agreement, they can create a postnup to institute changes if they both agree to alter their existing agreement. This is especially helpful if the changes are what’s causing the dissension. Of course, if a couple does not have a prenup, a postnup can still be effective.
It’s important to note that if the couple entered into a prenuptial agreement, neither can force the other to agree to changes after the marriage. To replace a prenuptial agreement with a postnuptial agreement, there would need to be the same transparency regarding assets, good faith in dealing, and new and adequate consideration.
Postnuptial Agreements in Action
With this in mind, consider the following scenario. Two individuals, both professionals earning comparable and relatively high salaries, decide to become parents. With the high cost of childcare, the parents-to-be make a joint decision that one of them will take a step back from the rat race and become a stay-at-home parent during the child’s (and any future child’s) formative years.
Though the couple is in agreement, the spouse who will be putting their career on pause may have some trepidation about their earning power when they return to work after being out of the workforce for an extended period or what would happen if they didn’t return at all but one day due to divorce had to rely on their individual earnings.
Causing some sleepless nights before actually taking the step back, the spouse to be designated the caregiving spouse thinks a postnup could offer them some peace of mind. This is not necessarily because the marriage is troubled but because they are concerned that the ongoing worry could cause resentment and an eventual rift between them. They raise the topic of a postnup as a means to create transparency and, by doing so, eliminate uncertainty and current or future conflict.
Rebuilding Trust After Betrayal
A postnuptial agreement can also help spouses rebuild trust if one has previously engaged in financial infidelity or reckless spending.
The Exception: Residential Time and Child Support
In Washington state, postnups cannot cover residential time and child support if the couple divorces. These issues require oversight from the court, which bases its decisions on what’s in the child’s best interests.
Can a Postnup Actually Save a Marriage?
A postnuptial agreement won’t fix deeper emotional or communication issues. Just as a prenuptial agreement cannot divorce-proof a marriage, a postnuptial agreement cannot save one. For a couple to save their marriage, many things need to happen, beginning with how they communicate. A postnuptial agreement facilitates open communication, so it can be a valuable tool in repairing a marriage. Nothing, however, is a fail-safe.
Why Enforceability of a Postnup Matters
Because of its value, you want to know that the postnuptial agreement you create and intend to rely on will be enforceable in court. Washington courts recognize prenuptial and postnuptial agreements, but how and when they were made can impact whether a judge enforces them.
Properly prepared prenups tend to hold up better because couples sign them before marriage, making coercion less of a concern, though not wholly obsolete. The circumstances surrounding the signing will determine whether that is the case. The earlier a couple signs a prenup, the stronger the argument that both had sufficient time to review, understand, and hire individual lawyers.
Factors Courts Consider When Deciding the Validity of a Postnup
Courts generally consider two factors when deciding whether a prenup is valid: fairness and whether both parties entered the agreement voluntarily. If a prenup mirrors a court’s decision, it’s more likely to stand. But if it’s not balanced, even by a little, it may still be upheld if it can shown that both parties knowingly agreed to it without pressure. Documenting negotiations or signing well before the wedding can help show that it was voluntary.
Postnups follow similar rules but can be trickier because they are signed after marriage. Having separate legal counsel is an indispensable way to demonstrate that both parties agreed willingly and with full knowledge of what they were agreeing to. Because postnups don’t have the built-in timing advantage of prenups, demonstrating fairness and consent becomes even more imperative.
One way to strengthen either agreement is through the collaborative process, where both parties and their lawyers work together instead of taking an adversarial approach. While communications in collaborative law are typically private, some documentation from the proceedings could be used in court to show that the agreement was made voluntarily and with informed consent.
Regardless of the agreement, prenup or postnup, creating yours through a proper legal process can help with a potential challenge. Whether a postnup leads to a stronger marriage or a more amicable split, the goal is to create stability and peace of mind — something every couple, including you, deserves.
How to Find a Washington State Postnuptial Agreement Lawyer
Some conversations are more emotionally fraught than others, but that doesn’t mean they’re not worth having. Discussions around creating a postnup can be some of the most fruitful you will have, whether you are looking to strengthen your marriage, put safeguards in place should divorce become imminent or do some of both.
At Elise Buie Family Law, our Washington family law attorneys have extensive experience creating relationship agreements, including postnuptial agreements, and can help with yours. Call our Seattle office today or schedule a time to speak.
