Getting Married Without a Prenup – Can You Make One After The Nuptials?

First comes love, then comes marriage, and then comes a postnuptial agreement? 

Most of us are familiar with the idea of a prenup, but if something changes after the wedding, can you still protect what’s yours? As we’ve seen between Memphis and Hamza on 90 Day Fiance, involving a lawyer after the wedding to create a postnup can sow distrust and suspicion. And in testimony given during the May 2022 Johnny Depp-Amber Heard divorce trial, they each described a fight so savage that bottles were smashed and Johnny’s finger was sliced open. The topic of that fight? Signing a postnuptial agreement.

Despite these extreme examples, creating a legal agreement to clarify finances in the event of divorce can be one of the smartest moves a married pair can make. In Louisiana, both prenuptial and postnuptial documents are recognized equally from a legal standpoint. But why would a couple need a binding legal document once they’ve said “I do”?

What Is a Postnup?

The emotions around marriage can be a whirlwind. They can make a person think nothing will ever go wrong, but it’s a sad fact that Louisiana has one of the highest divorce rates in the country. Discussing a pre- or postnuptial agreement can be uncomfortable and may cause heated arguments. These conversations can be a true test of a relationship’s stability. On the flip side, couples who hammer out agreements that satisfy their desires for a sense of clarity can end up being some of the happiest.

In situations where one or both of the individuals has significant assets to protect or children to consider, a pre- or postnuptial agreement can ensure each party’s interests are protected if a marriage ends. Postnups are most often drawn up when something changes the relationship, such as the birth of children, a change in one party’s career, or an unexpected inheritance. While most agreements cover concerns about finances, they can even include details about things such as household chore division or how often in-laws can come visit.

Louisiana is a community property state, so the law considers any money or property coming into the possession of one spouse as belonging equally to both spouses. Many couples are fine with this situation, but if one spouse inherits a house that’s been in their family for generations, a divorce could mean they risk having to sell it to give their ex their equal share. The answer to keeping assets like this in the original family can be a postnuptial.

Are There Different Kinds of Postnups?

Financial concerns are the most common focus for a postnup, but there are other kinds. In general, there are three types in use in the US focusing on one of these areas:

• Dividing assets and providing spousal support: This spells out how the couple’s liabilities and assets would be handled during a divorce, especially if they mean to differ from Louisiana’s community property division. This can cover alimony and support for the ex and any children.
• Waiving spousal rights when one of you dies: Agreements like this give instructions on how to divide property and other assets when one spouse dies. This is meant to supersede a will or probate court, releasing any rights each spouse might have to the other’s property. This is ideal for giving property directly to children.
• Making a template for a separation agreement: Using this type of postnup outlines how child custody and child support will be handled and can be a template for any future separation or divorce decree.

When Should I Avoid Getting a Postnup?

Even if one spouse doesn’t have significant assets or money, postnuptial documents can help iron out any situations that might continuously come up in arguments. But sometimes, signing a postnup can be a bad idea. For instance, if one party does earn a lot more money or has a lot of family wealth, having a legally binding document can protect what’s theirs no matter what happens. The other spouse might feel left out in the cold if their needs are not adequately provided for in the event of divorce or separation. Signing a postnup that leaves them empty-handed is not a good idea for them.

Another time to refuse to sign a postnup is when both parties haven’t been given enough time to read and assess the terms. Each may need to hire a lawyer to help you review the agreement, but it can be money well spent to be sure they’re both fully aware of what they’re getting into. If one spouse doesn’t fully understand the protections and limits in the postnup and signs it anyway, they probably won’t be able to claim ignorance later on. The law expects that each party will read any binding contract they sign and that they’ll stick to it.

For example, in the case of Art and Lysa TerKeurst, Lysa filed for divorce after discovering that Art was spending money on extramarital affairs. Art then filed a response to that divorce petition asking for an equitable division of property, alimony, and even damages. He claimed their postnuptial agreement should be nullified because he made it under duress. Art said he was struggling with alcoholism and wasn’t able to consult with his legal counsel before signing. Even with this type of claim, it’s up to the court to decide whether he must abide by the postnup or not.

Can I Break a Postnup?

In Louisiana, both prenuptial and postnuptial agreements are legally binding and would require filing legal documents and petitioning a family court judge to break the contract. Like in the case of Art TerKeurst, the wronged party will have to present strong evidence that they should be released from it. A family law attorney can help figure out if the case meets one of the following conditions:

• Was the agreement executed properly?
• Is it incomplete or false, or does it contain any unfair provisions? 
• Did you sign it under circumstances that could have affected the party’s judgment?

Trying to break a postnup is a lot harder than entering into one, so you must be sure you have good legal counsel, and all necessary evidence is in order. Even then, it’s up to the judge to decide if there is enough standing to dissolve the agreement.