# Why can't you have a post-nuptual agreement? **URL:** \ **Category:** Factual Questions\ **Created:** [November 30, 2006, 4:36pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341 "2006-11-30T16:36:46Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![According\_to\_Pliny](https://avatars.discourse-cdn.com/v4/letter/a/8e7dd6/32.png) [@According\_to\_Pliny](https://boards.straightdope.com/u/According_to_Pliny)\ **Post date:** [November 30, 2006, 4:36pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/1 "2006-11-30T16:36:46Z")
Seems like that would make sense. Sometimes very important things need to be agreed to before something is done, and that agreement should be enforceable. For example, “I will adopt your children from a prior marriage, but if we divorce within the next 5 years, then custody and support will be thus: \_\_\_\_\_” ---
**Author:** ![hajario](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hajario/32/171_2.png) [@hajario](https://boards.straightdope.com/u/hajario)\ **Post date:** [November 30, 2006, 4:43pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/2 "2006-11-30T16:43:07Z")
This probably belongs in GQ. You _can_ have a post-nup. One of my relatives has one to separate some of her assets from her husband’s. They did it because despite all of his good qualities, he is a financial mess. She was concerned about losing some of her assets because of his bad financial decisions often led to debt. Also he had a law suit happy ex-wife and she didn’t want to get attached. ---
**Author:** ![WhyNot](https://avatars.discourse-cdn.com/v4/letter/w/c77e96/32.png) [@WhyNot](https://boards.straightdope.com/u/WhyNot)\ **Post date:** [November 30, 2006, 4:50pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/3 "2006-11-30T16:50:55Z")
I reported this thread so a mod can move it to a more appropriate forum. ---
**Author:** ![Gary\_T](https://avatars.discourse-cdn.com/v4/letter/g/3ec8ea/32.png) [@Gary\_T](https://boards.straightdope.com/u/Gary_T)\ **Post date:** [November 30, 2006, 5:08pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/4 "2006-11-30T17:08:07Z")
There’s no reason why you can’t have a postnuptial agreement. Why do you assume you can’t? Just google on _postnuptial_. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [November 30, 2006, 5:19pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/5 "2006-11-30T17:19:36Z")
Pre-nup agreements generally involve marital property, not custody and support. Agreements regarding child support, whether pre-nup or post-nup, are generally unenforceable in most jurisdictions as against public policy. You can make a pre-nup agreement to never seek any child support, but if any party changes their mind the courts won’t enforce it. Custody would likely be treated much the same way; if you make an agreement that your wife will have full custody in the event of a divorce and she turns into a crack addict, the court isn’t going to send the children off to live with her because it’s not in their best interest. ---
**Author:** ![Si\_Amigo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/si_amigo/32/2877_2.png) [@Si\_Amigo](https://boards.straightdope.com/u/Si_Amigo)\ **Post date:** [November 30, 2006, 5:54pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/6 "2006-11-30T17:54:47Z")
Isn’t a divorce decree a post nuptuial agreement? :dubious: ---
**Author:** ![CookingWithGas](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cookingwithgas/32/485_2.png) [@CookingWithGas](https://boards.straightdope.com/u/CookingWithGas)\ **Post date:** [November 30, 2006, 7:32pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/7 "2006-11-30T19:32:14Z")
You can, but I think one reason you don’t hear more about them is that once the marriage takes place, the parties have less leverage to get the other party to agree to something. The most well-known cases are celebreties who have lots more assets than their spouse-to-be and want to protect those assets against any claims in case of divorce. Well, if you’re the spouse-to-be, what is your motivation to sign such an agreement \*after \* the wedding? Before the wedding, you might agree because you want to marry the person anyway. But once you’re married, there’s no benefit to you. BTW **Si Amigo** a divorce decree would be best described as a post-marital agreement. A post-nuptial agreement is after the wedding but while the marriage is still apparently intact. ---
**Author:** ![According\_to\_Pliny](https://avatars.discourse-cdn.com/v4/letter/a/8e7dd6/32.png) [@According\_to\_Pliny](https://boards.straightdope.com/u/According_to_Pliny)\ **Post date:** [November 30, 2006, 10:33pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/8 "2006-11-30T22:33:52Z")
## [QUOTE=WhyNot] I reported this thread so a mod can move it to a more appropriate forum. [/QUOTE] This a question about facts. There is a discrete answer. I don’t care about anyone’s opinion. To the other commenter’s: Ok, ignore custody and child support. I was just trying to come up with a scenario. My understanding was that married people are considered legally entwined in most material ownership ways, as well as sharing income in community property states. And that the sole reason for the existence of pre-nups is that post-nups are unenforceable. ---
**Author:** ![According\_to\_Pliny](https://avatars.discourse-cdn.com/v4/letter/a/8e7dd6/32.png) [@According\_to\_Pliny](https://boards.straightdope.com/u/According_to_Pliny)\ **Post date:** [November 30, 2006, 10:38pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/9 "2006-11-30T22:38:26Z")
[QUOTE=Gary T] There’s no reason why you can’t have a postnuptial agreement. Why do you assume you can’t? Just google on _postnuptial_. [/QUOTE] If you had followed your own advice before posting it, you would realize that postnups are not legal in all states, including the one I care about. The question is “Why not” There must be a reason. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [November 30, 2006, 10:57pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/10 "2006-11-30T22:57:05Z")
[QUOTE=Si Amigo] Isn’t a divorce decree a post nuptuial agreement? :dubious: [/QUOTE] A final decree can be the result of an agreement, but not necessarily. The decree is the court’s order. Some people are in disagreement with _everything_ in their divorce decree! ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [November 30, 2006, 11:58pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/11 "2006-11-30T23:58:13Z")
[QUOTE=According to Pliny] My understanding was that married people are considered legally entwined in most material ownership ways, as well as sharing income in community property states. [/QUOTE] Depends on the state, and the kind of property, and in many cases, when it was acquired. In Michigan, for example, husband and wife can have separate property, but family courts have a lot of leeway in making an equitable division of property. [http://www.divorcenet.com/states/michigan/marital\_property\_in\_michigan](http://www.divorcenet.com/states/michigan/marital_property_in_michigan) Community property law is trickier. [http://www.trustsandestates.net/Nutshell-Public/CPNutshell/IceCPNutshell.rtf](http://www.trustsandestates.net/Nutshell-Public/CPNutshell/IceCPNutshell.rtf) (rich text format document) An agreement can be useful to avoid the risks of having a judge divide the property. It can also be a valuable tool for estate planning, especially if the parties have been married before, or one has a lot of assets: > [@](#): > > Sometimes persons intending to marry use premarital agreements as a way of clarifying their expectations and rights for the future. Another reason for making such agreements is to try to avoid uncertainties about how a divorce court might divide property and decide spousal support if the marriage fails. A man or woman who wants a future spouse to enter into a premarital agreement often has something he or she wants to protect, usually money. One or both partners may want to avoid the risk of a major loss of assets, income, or a family business in the event of a divorce. For people marrying for a second or third time, there might be a desire to make sure that a majority of assets or personal belongings are passed on to the children or grandchildren of prior marriages rather than a current spouse. > **[Public Education Homepage](https://www.americanbar.org/groups/public_education/)** > > Public education homepage for civic education initiatives, lawyer in the classroom programs, lesson plans, supreme court information, and law-related education resources and programs. > [@](#): > > And that the sole reason for the existence of pre-nups is that post-nups are unenforceable. Generally, no. > [@](#): > > Postnupital agreements also known as postmarital agreements are agreements entered into after a marriage has taken place, but before the parties seek to end their marriage. As with premarital agreements, one or both of the parties usually is seeking to protect assets or income in the event of divorce or death. > **[Pennsylvania Divorce and Family Law](https://www.divorcenet.com/states/pennsylvania)** > > A Divorce topic page. [http://www.divorcenet.com/states/new\_jersey/ten\_questions\_you\_always\_wanted\_to\_ask\_about\_postnuptial\_agreements](http://www.divorcenet.com/states/new_jersey/ten_questions_you_always_wanted_to_ask_about_postnuptial_agreements) > **[Prenuptial Agreements - FindLaw](https://www.findlaw.com/family/marriage/prenuptial-agreements.html)** > > Prenuptial agreements set the property and financial rights of each spouse during a divorce. Learn more about prenups and how one can help you at FindLaw.​ [http://www.maurerrifkinandhill.com/article.jsp?practArea=29&articleIndex=4](http://www.maurerrifkinandhill.com/article.jsp?practArea=29&articleIndex=4) [http://rushforth.net/answers5.html#Postnuptial](http://rushforth.net/answers5.html#Postnuptial) [http://courts.co.calhoun.mi.us/04dom012.htm](http://courts.co.calhoun.mi.us/04dom012.htm) But see, > [@](#): > > Postmaritals in Minnesota > > Until recently, Minnesota law on postmarital agreements, while less developed than that on premarital agreements, has been workable for the practicing lawyer. M.S.A. section 519.06 unequivocally permits husbands and wives to contract with each other on any subject. But a single Minnesota Court of Appeals opinion, Lerner v. Lerner, unaccountably holds that, for a postmarital agreement to be valid, the spouses must be living apart at execution. With an eye on this case, good lawyers have been drafting postmarital agreements for their clients, whether the clients are living together or apart, warning that they might not hold up. While the established standards for testing the validity of premarital agreements did not explicitly apply to postmarital agreements, most lawyers tried to comply with them anyway, knowing that courts would treat an agreement more kindly if procedural and substantive fairness attended its execution. [http://library.findlaw.com/2000/May/1/127336.html](http://library.findlaw.com/2000/May/1/127336.html) and > **[North Carolina Legal Research & Court Cases: Find NC Opinions at FindLaw](https://caselaw.findlaw.com/court/north-carolina)** > > FindLaw provides resources for North Carolina legal research including searchable database of the NC Cases : NC Court Opinions - NC Court Decisions There is also another kind of marital agreement called a separation agreement. Those are intended to settle issues when the parties are already splitting up. In fact, sometimes they have to be living apart for the separation agreement to be valid. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 1, 2006, 4:41pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/12 "2006-12-01T16:41:12Z")
There are probably a few reasons why post-nups are less common: 1. Fiduciary relationship issues. They can be a bit harder to enforce. As some of the links suggest, spouses are held to a higher standard when it comes to contracts because of their fiduciary relationship. Courts will scrutininize their agreements for undue influence or non-disclosure. [http://www.divorcenet.com/states/california/top\_10\_family\_law\_issues\_for\_2005](http://www.divorcenet.com/states/california/top_10_family_law_issues_for_2005); _But see_, [http://oc-divorce.typepad.com/california\_divorce\_and\_fa/2006/05/index.html](http://oc-divorce.typepad.com/california_divorce_and_fa/2006/05/index.html) (No Presumption of Undue Influence in post marital agreements absent proof of unfair advantage). Because of this, the parties have to build a record that the deal was fair, and nobody was unduly influenced. That often means that both parties have their own lawyers. 2. Less bargaining power. It’s one thing to say “no prenup–no wedding,” and another to say “no agreement–we get divorced.” You see, a divorce will be bad for the party seeking the postnup–that’s why they want a postnup. So if one party asks the other for a postnup, and the other says no, the best alternative to a negotiated agreement is often the status quo, and probably some serious estate planning work. Here is some more stuff on postmarital agreements: [http://www.law.siu.edu/research/29fallwintpdf/Domsky%20Word%20Perfect%20Final.pdf](http://www.law.siu.edu/research/29fallwintpdf/Domsky%20Word%20Perfect%20Final.pdf) [http://www.rbs2.com/dcontract.pdf](http://www.rbs2.com/dcontract.pdf) [http://fsnews.findlaw.com/cases/ca/caapp4th/slip/2006/b179751.html](http://fsnews.findlaw.com/cases/ca/caapp4th/slip/2006/b179751.html) ---
**Author:** ![JKellyMap](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jkellymap/32/15880_2.png) [@JKellyMap](https://boards.straightdope.com/u/JKellyMap)\ **Post date:** [December 1, 2006, 5:13pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/13 "2006-12-01T17:13:32Z")
Just did a post-nup myself. In my case, would have been a pre-nup, but outside forces (i.e., immigration law absurdities, but that’s the stuff of a different thread) necessitated getting hitched before the pre-nup negotiations were concluded (you should take a couple of weeks minimum for both parties to think over the proposed agreement, so that there is less reason to suspect undue influence or pressure – in fact, California recently mandated a one-week waiting period). In my case, the post-nup was essentially identitical to what the pre-nup would have been. As for the “after marrying, no more incentive on the part of the person with less property to sign” point which another poster made, that’s true, but in our case my wife was generous enough to understand that there was no point in introducing friction by suddenly playing hardball – it’s bad enough having to deal with potential separation just at the time when that is the very last thing on your mind. All I can say is, pre-nup or poat-nup, I’m sure glad I don’t have to think about the damn thing ever again. ---
**Author:** ![Gary\_T](https://avatars.discourse-cdn.com/v4/letter/g/3ec8ea/32.png) [@Gary\_T](https://boards.straightdope.com/u/Gary_T)\ **Post date:** [December 1, 2006, 7:22pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/14 "2006-12-01T19:22:24Z")
[QUOTE=According to Pliny] If you had followed your own advice before posting it, you would realize that postnups are not legal in all states, including the one I care about. [/quote] Well, if someone had asked why you can’t have a postnuptial agreement in certain states, or in your particular state (and we still don’t know what state that is), I might have done that. But the question as asked implies that postnups are not allowed anywhere, and I answered it in that context. > [@](#): > > The question is “Why not” There must be a reason. To get the answer you’re looking for, a more helpful question would be “Why doesn’t the state of X recongnize postnuptial agreements?” ---
**Author:** ![According\_to\_Pliny](https://avatars.discourse-cdn.com/v4/letter/a/8e7dd6/32.png) [@According\_to\_Pliny](https://boards.straightdope.com/u/According_to_Pliny)\ **Post date:** [December 2, 2006, 1:27pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/15 "2006-12-02T13:27:48Z")
[QUOTE=Gary T] Well, if someone had asked why you can’t have a postnuptial agreement in certain states, or in your particular state (and we still don’t know what state that is), I might have done that. But the question as asked implies that postnups are not allowed anywhere, and I answered it in that context. To get the answer you’re looking for, a more helpful question would be “Why doesn’t the state of X recongnize postnuptial agreements?” [/QUOTE] Fine. Have it your way. I’ll substitute the question worded just like you can understand it. Now what’s the answer? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 2, 2006, 3:21pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/16 "2006-12-02T15:21:29Z")
I’m not sure more than one or two states still don’t recognize them; > [@](#): > > # Ohio courts don’t recognize them at all – with an appeals court there declaring that a married couple “cannot make a contract that alters their legal relations.” > > # In Louisiana, a married couple must jointly petition a court to approve a post-nuptial, and the court must find that it serves their “best interests.” > > # A 1994 Minnesota law allows such agreements – but only in cases where each spouse has a net worth above $1.2 million and the couple remains married two years after signing it. [http://www.ncpa.org/pd/social/pd072199f.html](http://www.ncpa.org/pd/social/pd072199f.html) > [@](#): > > But the part about Minnesota is wrong: > > Subd. 1a. Postnuptial contract. (a) Spouses who are legally married under the laws of this > state may enter into a postnuptial contract or settlement which is valid and enforceable if it: > (1) complies with the requirements for antenuptial contracts or settlements in this section > and in the law of this state, including, but not limited to, the requirement that it be procedurally > and substantively fair and equitable both at the time of its execution and at the time of its > enforcement; and > (2) complies with the requirements for postnuptial contracts or settlements in this section. > (b) A postnuptial contract or settlement that conforms with this section may determine all > matters that may be determined by an antenuptial contract or settlement under the law of this state, > except that a postnuptial contract or settlement may not determine the rights of any child of the > spouses to child support from either spouse or rights of child custody or parenting time. > (c) A postnuptial contract or settlement is valid and enforceable only if at the time of its > execution each spouse is represented by separate legal counsel. > (d) A postnuptial contract or settlement is presumed to be unenforceable if either party > commences an action for a legal separation or dissolution within two years of the date of its > execution, unless the spouse seeking to enforce the postnuptial contract or settlement can establish > that the postnuptial contract or settlement is fair and equitable. > (e) Nothing in this section shall impair the validity or enforceability of a contract, agreement, > or waiver which is entered into after marriage and which is described in chapter 524, article > 2, part 2, further, a conveyance permitted by section 500.19 is not a postnuptial contract or > settlement under this section. [http://ros.leg.mn/bin/getpub.php?pubtype=STAT\_CHAP\_SEC&year=2006§ion=519.11&keyword\_type=exact](http://ros.leg.mn/bin/getpub.php?pubtype=STAT_CHAP_SEC&year=2006§ion=519.11&keyword_type=exact) Ohio still apparently does not recognize them because of an old statute: > [@](#): > > In Ohio, a husband and wife cannot by contract alter legal relations between them. R.C. 3103.06. Therefore, postnuptial agreements [\*5] are generally held invalid. Logan v. Logan (Apr. 25, 1985), Cuyahoga App. Nos. 48833 and 48863, unreported. Accord In re Estate of Weber (1960), 170 Ohio St. 567, 167 N.E.2d 98; Brewsaugh v. Brewsaugh (1985), 23 Ohio Misc. 2d 19, 491 N.E.2d 748. There are two exceptions to this rule, because the courts recognize the validity of postnuptial agreements which are executed pursuant to separation and those that memorialize in writing oral antenuptial agreements. See R.C. 3103.06; Estate of Weber, supra. The agreements executed by the the husband and wife in the instant case do not come under either exception but fall within the prohibition of R.C. 3103.06. \*Burgin v. Burgin \* 1987 Ohio App. LEXIS 8157. There is a history of the policy against post-nups here: [http://www.rbs2.com/dcontract.pdf](http://www.rbs2.com/dcontract.pdf) (pdf p. 3) ---
**Author:** ![AskNott](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asknott/32/5790_2.png) [@AskNott](https://boards.straightdope.com/u/AskNott)\ **Post date:** [December 2, 2006, 7:19pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/17 "2006-12-02T19:19:51Z")
Oy. :smack: Somebody, I guess, has to do the required grumping about nupt **u** al, nup **it** al, and the correct nuptial. I wouldn’t even bother, except to segue to a lame joke. It really should be spelled **nop** tial, because there’s a lot more **nop** ing after the wedding. Nope, nope, nope. :rolleyes: . . . . . . . . . . . . My first unnecessary post of the day, that’s what it is. ---
**Author:** ![galt](https://avatars.discourse-cdn.com/v4/letter/g/35a633/32.png) [@galt](https://boards.straightdope.com/u/galt)\ **Post date:** [December 2, 2006, 7:54pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/18 "2006-12-02T19:54:14Z")
I make post-nuptual agreements all the time. “Ok, I’ll agree not to leave my socks in the living room if you’ll agree not to leave your empty yogurt containers in the sink.” 😃 ---
**Author:** ![ratatoskK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ratatoskk/32/2987_2.png) [@ratatoskK](https://boards.straightdope.com/u/ratatoskK)\ **Post date:** [December 2, 2006, 9:45pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/19 "2006-12-02T21:45:43Z")
I had one with my ex (before we divorced). It actually was helpful when we eventually divorced, because we had already discussed and agreed to how we divide our assets. Not because of any legality, just because we had come to an understanding. Anyway, in Massachusetts, my attorney explained that a post-nup isn’t as enforceable as a pre-nup, and if it went to court a lot would depend on the discretion of the individual judge. (But that never happened.) ---
**Author:** ![According\_to\_Pliny](https://avatars.discourse-cdn.com/v4/letter/a/8e7dd6/32.png) [@According\_to\_Pliny](https://boards.straightdope.com/u/According_to_Pliny)\ **Post date:** [December 2, 2006, 10:37pm UTC](https://boards.straightdope.com/t/why-cant-you-have-a-post-nuptual-agreement/382341/20 "2006-12-02T22:37:41Z")
Thanks for the cites **Gfactor**. I think they cover the answer more than I expected. And thanks to those who reported on their personal experiences.