A prenuptial or postnuptial agreement are both marital agreements made between spouses or soon-to-be spouses. These agreements allow parties to determine individual and shared rights to property and assets, asset and debt division, and make other important financial decisions during their marriage and in case of divorce. Some believe that these agreements make divorce more likely, or that these agreements are only useful to extremely wealthy couples. However, a prenuptial or postnuptial agreement can be useful for many couples and can help create better communication between parties and a sense of financial security. If done well, a marital agreement can make a marriage stronger.

Marital agreements aren’t always done well. It’s essential that couples enter into a marital agreement aware of their rights and how to protect them. Marital agreements can be unfair to one party, protecting the assets of one spouse from the financial determinant of the other.

During a divorce, a court should see that these provisions are unfair and void the agreement. However, this may not always happen, and a spouse may still face unfair provisions. Additionally, a voided agreement erases the time and effort spouses put into avoiding a complex divorce. This is why parties must be aware of their rights and the warning signs of an unfair marital agreement prior to signing one. There are several ways to protect your interests when entering into a marital agreement.

Avoid Rushed Agreements

Both spouses should have significant time to review and understand the provisions of a marital agreement. If you are presented with a marital agreement right before the wedding or during a time when you cannot devote full attention to it, this may be a sign that you shouldn’t sign the agreement. A marital agreement, like any legal document, will be considered invalid if one party is coerced or forced into signing it. Additionally, a prenuptial agreement is often more effective if parties work together to create it.

Work With an Attorney

The most effective way to create a legally valid marital agreement that does not disfavor one party is by having an experienced attorney help draft and review the agreement. In some cases, couples having no legal representation is a reason to invalidate a marital agreement. An attorney can protect your rights and help you determine your wishes for the agreement. They can mediate between parties, help find solutions, and ensure all necessary aspects of an agreement are covered.

Be Wary of Unclear or Unrealistic Provisions

Marital agreements must address assets and debts very clearly and specifically. Vague or non-detailed marital agreements may be unenforceable. Additionally, if discussions between parties are as vague, the marital agreement is not a useful tool for discussing and making decisions about finances.

Marital agreements may also include unrealistic provisions, such as clauses about spouses’ individual behavior or decisions. These are frequently unenforceable and suggest a controlling spouse.

Fair Division of Assets

One of the most important things in a marital agreement is asset division in case of divorce. If one spouse enters the marriage with significantly more assets and/or debts, it’s likely that the agreement will revolve around how those assets are kept separate property. However, the agreement should provide financial security for both parties, during a marriage, and after separation or death. If one party has a significant claim to marital property while the other party has limited assets, the court will likely consider the agreement unfair and void it.


Q: Who Benefits the Most from a Prenup?

A: When a couple creates a marital agreement like a prenuptial agreement, they both ideally benefit. Spouses can determine the rights each have to both separate and community assets and debts. If one spouse benefits significantly from a marital agreement and it financially harms the other spouse, the court may determine the unfair agreement or provisions are void.

It is a misconception that only wealthy couples benefit from marital agreements. A prenuptial or postnuptial agreement can provide any spouse with financial security and certainty in the future, regardless of wealth.

Q: Can Cheating Void a Prenup?

A: Cheating will not void a prenuptial agreement or postnuptial agreement unless that is a specific provision in the agreement. Some marital agreements may include an infidelity clause, although these are not enforceable in all states. In states where they are allowed, they must be fair and reasonable under state law. A marital agreement may outline how property division changes if one spouse cheats, just as many marital agreements list what life changes could alter the agreement. Spouses may also be able to enter into a postnuptial agreement if a prenuptial agreement no longer fits their life. An attorney can help you decide if an infidelity clause is legally valid and the ideal choice for a prenuptial agreement.

Q: What Are the Downsides of Prenups?

A: If a prenuptial agreement is found invalid by the court, then spouses have wasted time, money, and energy creating a legal document that doesn’t help them. They may still have to go through a complex and litigious divorce if they can’t reach an agreement through alternative dispute resolutions. A principal or marital agreement can also be unfair to one spouse. In most cases, this is the reason for the court to invalidate the agreement, but it could still be carried out and severely harm one party.

Q: Are Couples with Prenups More Likely to Get Divorced?

A: A prenuptial agreement itself is not the reason for a divorce but the reasons a couple enters into a prenuptial agreement. Prenuptial agreements allow couples to discuss important financial decisions and give both parties a sense of financial stability. A prenuptial agreement can ensure both parties are taken care of financially after a divorce, and this certainly can actually make spouses happier in marriage. However, if a prenuptial agreement is approached by spouses as a precursor to divorce, this may be what it becomes.

Experienced Midwest Attorneys Protecting Your Interests

There are several benefits to prenuptial and postnuptial agreements if done right. Marital agreements can help spouses plan for a long and stable life together and protect their assets and debts in the process. At Stange Law Firm, we can help you draft, review, and negotiate a marital agreement. Contact us today to see how our experienced attorneys can protect your rights.