Which is better – a Prenup or a Postnup?

What’s a better option – a prenuptial agreement or a postnuptial agreement?  The answer is a Prenuptial Agreement is by far, still better than a postnuptial agreement.

Until recently, the question of whether a postnup is even valid in Massachusetts was a question that hadn’t been answered by the courts or the legislature.  However, in a recent decision, the Supreme Judicial Court in Boston (Massachusetts’ highest court), ruled that a properly executed postnuptial agreement could be valid.

In order for a postnup to be valid, it has to meet the following 5 criterion:

  1. Each party to the postnup had to have had an opportunity to obtain separate legal counsel
  2. There was no fraud or coercion in obtaining the agreement
  3. All assets were fully disclosed by both parties before the agreement was executed
  4. Each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce
  5. the terms of the agreement are fair and reasonable at the time of execution AND at the time of divorce

In contrast, a valid prenup has to meet the following criterion:

  1. Each party to a prenup had to have had separate legal counsel
  2. There was no fraud or coercion in obtaining the agreement
  3. All assets and liabilities were fully disclosed by both parties before the agreement was executed
  4. Each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce.

If you look at the difference between the two standards, it’s not a big gap.  However, the reason why a prenup is by far a better option is due to the fulfillment of #2 above for both – the absence of any fraud or coercion.  It’s easy to show there was no fraud or coercion in a prenup because one of the parties could simply not agree to be married (if given enough time between signing of the prenup and the marriage).  It’s much harder to show that there was no coercion during a marriage when one spouse is asking another spouse to sign a postnup OR ELSE…  It is the “or else” part that could constitute coercion and the threat of a divorce is enough to render a postnup invalid.

One Response to Which is better – a Prenup or a Postnup?
  1. nelida
    July 30, 2010 | 3:58 pm

    Yes, but there is a contadiction right there: on # 2: if the couples are already married and there is the threat of a divorce, then why sign the postnup? get a divorce without signing anything and get half of his or her assets. So, I don’t see why this would make it coercive when in fact it goes agains the person wanting to have postnup signed by the other spouse.

Leave a Reply