Protecting Your Assets If You Got Married Without a Prenup

Premarital agreements, often referred to as prenups or prenuptial agreements, are relatively mainstream now. However, many people might not be aware that there are measures you can take after you tie the knot to protect your assets in the event of a divorce.

While it may not be “romantic” to discuss a potential split with your spouse, creating a post-marital agreement can provide important legal protections for both spouses. Read on to learn about the options and strategies that you and your spouse can take to protect what’s yours if you split.

Why should you protect your assets in a marriage?

You and your spouse may live a long, happy life together, but divorce can and does happen. If a valid premarital or post-marital agreement is in place before a couple files for divorce, the proceedings are usually less costly from both a financial and emotional perspective. Because you’ve made a lot of important decisions up front, it often means a faster settlement and fewer (if any) emotionally charged court visits. In Virginia, if your divorce is essentially uncontested, you will not even need to appear in a courtroom.

A premarital or post-marital agreement can have the added benefit of creating is a stronger and more transparent relationship between you and your spouse (future spouse). For example, when talking about individual assets, couples are forced to talk about money. This type of conversation can reveal how each of you thinks about and handles money, including your spending and savings habits, what debts you may be bringing into the marriage (like student loans), etc. – which may eliminate later tension or surprise as your relationship and marriage progress.

How to protect your assets without a prenup

If you got married without a prenuptial agreement, here are a few things you can do to ensure the assets you brought into the marriage are protected in case of a divorce.

Separate your funds: While it may seem counterintuitive to what married couples typically choose to do, keeping your finances separate is one of the easiest ways to protect your assets. There’s no second-guessing about what belongs to whom. Whatever you bring with you into the marriage will remain yours if you divorce. Once you comingle your funds, they become marital property and can be divided equally between you and your spouse.
Separate your real estate: Similarly, to any financial accounts you established before marriage, you can leave your real estate holdings solely in your name. If you use funds from a joint account to pay taxes or complete any significant renovations that increase the property’s value, your spouse can use that argument to claim interest in the property.
Separate your personal assets: If you’re interested in maintaining sole ownership of personal items you acquired before your marriage or via an inheritance, the same principle applies. For example, if you owned a car before getting married, you should use non-marital funds to pay for any loan and maintenance expenses.
Keep retirement account statements from before marriage: If you opened a retirement account before your wedding and wish to keep that separate from your marital assets, you’ll need to prove that your contributions didn’t come from a joint account.
Create a post-marital agreement: A post-marital or post-nuptial agreement is one of the best options to protect your assets from being considered marital property. This protection extends beyond divorce; post-marital agreements can protect your assets if you or your spouse experience legal trouble, come into an inheritance, or win the lottery.

What is a postnuptial agreement?

Similar to a premarital agreement, a post-marital agreement is a contract created by you and your spouse after your wedding that describes, in detail, the division and ownership of your assets if you choose to divorce. You can also specify who will be responsible for the care of your children, pets, and any other obligations you shared throughout your marriage (BUT: not custody or child support, however, which must both be determined in accordance with the then applicable state laws where you are divorcing, and the children reside).

There are several reasons why a couple may elect to create a post-marital agreement, including to ensure a stay-at-home parent is provided for, to protect an inheritance, or, contrary to popular belief, for the sake of marital harmony.

Much like custody law, legal precedents surrounding post-marital agreements falls under state law. However, there are five essential components every post-marital agreement needs:

Both parties have to voluntarily agree and choose to create the post-nuptial.
The terms outlined in the agreement cannot be more favorable to one party over another.
All relevant information must be disclosed and reviewed during the agreement execution process.
The post-nuptial must be a written document both spouses review and sign — oral agreements are not enforceable in a court of law.

Premarital agreement vs. post-marital agreement

Essentially, there is no difference between a prenup and a postnup other than the timing. While the language may differ slightly, both documents are legally binding arrangements that a couple agrees to abide by.

It’s important to note that a post-marital agreement may include the assets each person may have acquired during the marriage, while prenups typically focus only on individual assets before exchanging vows. Assets obtained after marriage could include inheritance, lifetime gifts received by either spouse from their parent(s), retirement funds, stocks, lottery winnings, jointly owned real estate, or vehicles.

What to know when creating a post-marital agreement

Whether you didn’t get around to it before the wedding or waited to discuss assets after the honeymoon, couples should take the following into account when drafting a post-marital agreement:

The agreement must be in writing and free from slander and invalid or incomplete information.
Each party should have the proper time to read, sign, and notarize the document. Neither person should be pressured or under duress to sign. If these provisions are not followed, the agreement could be rendered invalid.
Drafting provisions to address future children will likely not be valid in court because you cannot foresee a future child’s best interests in case of a possible divorce.
If you and your spouse reconcile after you’ve filed for divorce, the post-marital agreement is considered void unless otherwise specified in the agreement itself.
You can choose to outline the terms of spousal support and any provisions regarding your and your spouse’s wills or trust funds.

What to include in a post-marital agreement

If you have a lot of assets, it could be challenging to remember all of them. Be sure to make a thorough list and discuss the following with your spouse when creating a post-marital agreement:

The division of current and future assets acquired during the marriage
Bank accounts, trust funds, and other financial accounts
The division of debts and payments between each party
What would happen to a party’s assets after their death
Retirements and health benefits
Any outstanding liabilities (including credit card debt or student loans)
Business holdings and investments
The parameters of spousal support within your marriage
The parameters for custody and visitation, but understanding that a court is always, as a matter of public policy, allowed to review and modify such provisions for the children’s best interests.
The parameters for unique matters, such as retaining ownership, access, and use of a frozen embryo, and, if used after divorce, how that will impact each party’s custodial and financial responsibilities to that child.
How both parties will track and divide any assets purchased during the marriage.

Need to draft a pre- or post-marital agreement?

My Legal Case Coach (MLCC) offers easy-to-use, templatized case form packets to help you draft a pre- or post-marital agreement with your fiancé or spouse. With each purchase, you’ll receive one (1) free hour of 1:1 virtual legal coaching, with an option to purchase additional prepaid blocks of ongoing coaching time (if needed) with an experienced Virginia attorney at a fraction of the cost for full-service representation.

Take our quiz to find the right packet for your needs, or schedule a complimentary 15-minute consultation to learn more about how MLCC can help you draft a prenuptial or post-nuptial agreement.