How to Protect Your Assets If You Got Married Without a Prenup

Patricia TichenorLegal

post-marital agreement

No one wants to think about the end of a marriage before it even begins. However, it’s important to have a conversation with your partner about the future of each of your individual assets, including money, investments and real estate, should you get divorced in the future.

If you did get married without signing a prenuptial or premarital agreement, it’s not too late to protect your assets. In the Commonwealth of Virginia, a post-marital or post-nuptial agreement is an option, too.

Although it may not be “romantic” to discuss a potential split with your spouse, creating this document can serve as an important legal protection for both of you should you ever divorce in the future.

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 be slightly different, 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 marriage, while prenups typically focus only on individual assets before exchanging of vows. Assets obtained after marriage could include inheritance, lifetime gifts received by either spouse from his/her parent(s), retirement funds, stocks, and jointly-owned real estate or vehicles.

Why should you protect your assets in a marriage?

It’s possible that 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 of a hassle. 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. You may not even need to appear in court at all if you choose to do a no-fault, uncontested divorce.

One added benefit of creating a premarital or post-marital agreement is a stronger and more transparent relationship. When talking about individual assets, couples are forced to talk about money. Having this conversation reveals how each person handles money, including debt and spending habits, so there are no surprises as your relationship and marriage progress.

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 had 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, it could result in rendering the agreement invalid.
  • Drafting provisions to deal with future children will likely not be valid in court. This is because you are unable to foresee a future child’s best interests in the event of a possible divorce.

What to include in a post-marital agreement

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

  • Division of current and future assets acquired during the marriage
  • Bank accounts, trust funds and other financial accounts
  • Division of debts and payments between each party
  • What would happen to a party’s assets after their death
  • Retirements and health benefits
  • Liabilities (including credit card debt or student loans)
  • Business holdings and investments
  • Parameters of spousal support within your marriage

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

My Legal Case Coach (MLCC) offers easy-to-use, templatized case form packets that will help you draft a pre- or post-marital agreement with your fiancé/spouse. With each purchase, you’ll receive one free hour of legal coaching, saving you both time and money.

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.