If you’re like many people who have been married for some time, you may not have thought much over the years about the prenuptial agreement you and your spouse signed before you wed. Unless you hit a very rough patch in your marriage, you may have forgotten all about it or even assumed that it had expired.
First, it’s important to know that prenups don’t “expire” unless a sunset provision was included. Assuming that’s not the case, it’s a good idea to read through it to make sure it still reflects your needs and priorities. It’s often best when spouses can do that together.
You can’t actually update or modify the prenup itself once you’re married. Any marital agreement put in place after the marriage takes place is considered a postnuptial agreement.
When is a modification worth considering?
Some couples don’t take this step unless they’re seriously considering divorce. However, it’s better to do it when the marriage is in a good place and you can more easily agree on the terms. It’s smart to replace your prenup with a postnup if it no longer reflects your lives or what you anticipated your lives to look like. For example:
- Has one of you become a stay-at-home parent or family caregiver?
- Is one of you have a significantly higher income than the other?
- Has one or both of you started their own business?
- Has one or both of you received (or been told they will be receiving) a large inheritance?
- Has one of you accrued a lot of debt on their own (for example, through gambling, bad investments or overspending)?
These are all things that can be addressed in a postnup so that you can help ensure a fairer division of property should you ever divorce.
You can also include a provision on spousal maintenance (alimony). Like a prenup, however, a postnup should not include any terms regarding child support or custody. The reasoning behind that is that if there is a divorce, a judge needs to have the final say on those matters based on the child’s best interests.
As with a prenup, you and your spouse should have your own legal representative when negotiating and signing a postnup. This can help to ensure that the agreement is legally valid and fair to both parties.