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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.

– Taylor Jordan
 June 29, 2019

What are Prenuptial Agreements? (PART II)

A prenuptial agreement (formally known as an “antenuptial agreement) is a written contract between two people entered into before their marriage. Typically, prenuptial agreements have a listing of all of the assets (tangible and intangible), and debts of each soon to be spouse. In the event of a legal separation or a divorce, the prenuptial agreement can provide for the division of property as well as determine the issue of spousal maintenance. The agreement may also set forth the distribution of assets and property in the event of the death of one spouse.

Prenuptial agreements can be useful tools for individuals planning to marry where one or both of the parties have significant assets. They are also popular in second marriages because parties who have been married before generally have assets and property that they would like to have passed on to their children and grandchildren, rather than to their subsequent spouse. To ensure that a prenuptial agreement is valid and fair to both parties, there must be a full and fair disclosure of the earnings and property of each party and the parties must have an opportunity to consult with legal counsel of their own choice.

At McCullough & Associates, we are here to help you navigate the complexities and legal nuances of prenuptial agreements. Our attorneys have almost 50 years of combined experience and handle many complex, high net worth cases. If you need assistance with a prenuptial agreement, contact our office today to set up an appointment.


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