Most are familiar with prenuptial agreements, which are sometimes referred to as antenuptial or premarital agreements. Prenuptial or premarital agreements are documents signed before parties get married.

Prenuptial agreements can encompass a wide range of issues from property and debt division, spousal maintenance and attorneys’ fees in the instance of divorce. For a prenuptial agreement to be valid, certain legal formalities need to be met.

However, many are not so sure what a postnuptial agreement is and why they might want to enter into one. A postnuptial agreement is just like a prenuptial agreement, except it is entered into after marriage. Postnuptial agreements can deal with the same issues as prenuptial agreements.

Many who did not get a prenuptial agreement might contemplate getting a postnuptial agreement. They might wonder how they can get their spouse to agree to a postnuptial agreement now that they are already married. 

The reality is that in some engagements, the negotiations over a prenuptial agreement can be significant. In some instances, parties even decide not to get married. One scenario that happens sometimes is parties instead decide to engage in an informal commitment ceremony of some kind instead of getting marries.

However, if one party wants a postnuptial agreement after marriage, there is not an easy way for a party to get their spouse to agree to one. Ultimately, just like with a prenuptial agreement, both parties need to have independent legal counsel representing them. Any postnuptial agreement would also require full and fair disclosure, no coercion or undue influence and it would have to be found to not be unconscionable. Both parties also have to willingly sign the postnuptial agreement.

For both parties to want to sign the postnuptial agreement, the terms usually have to result in both parties gaining in some respect by signing the postnuptial agreement. Otherwise, why would both parties sign a postnuptial agreement? Thus, finding a win-win reason why both parties may wish to sign the postnuptial agreement is most often the key. Win-win solutions can often rigorous negotiations and a balancing of interests.

However, if one party is gaining significantly more than the other party, the party who gains less often has no reason to agree to a postnuptial agreement. In many of these situations, attempts to get the other spouse to agree to a postnuptial agreement is often a lost cause.

But one potential way to explore the matter further may be in mediation or through the collaborative process. In either process, the parties might be able to forget a middle ground where the postnuptial agreement makes sense for both. In other cases, the attempts might prove to be unsuccessful.