I Forgot To Get A Pre-Nup. What Do I Do Now?

We've all heard that one of the most common issues married couples argue about is money. Well, could a post-nuptial agreement be the answer to some of that marital strife?

If the pre-nup is the oft-dreaded, deal breaker for a couple headed to the alter, then the post-nup may be its easier to stomach, a less contentious step-child, if you will. Both can include provisions for division of separate and community property and even who will pay the electric bill, but one is done pre-marriage and the other can be done many years after marriage.

Although not as common as a pre-nup, a post-nuptial agreement can accomplish the same thing as the pre-nup, but without the nerves of an impending wedding. Many people even do post-nups decades after their wedding day.

Couples often consider a post-nup when they have received a large inheritance or are doing their own estate planning. A post-nup may even be recommended by a marriage counselor to ease tensions between spouses over finances.

Actually, a very common reason for getting a post-nup is that one spouse receives a large inheritance. If the inheritance is a mountain cabin that has been in the spouse's family for generations, the spouse may want to make sure it stays in their family by signing a post-nup declaring it as separate property. Without a post-nup, it is possible the cabin could become partially or totally the other spouse's property on death or in a divorce.

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A post-nup is helpful for defining a financial relationship between spouses during marriage, on divorce or at death. Issues covered in a post-nup can include what will happen to separate assets of one spouse on divorce or at death and establish debt or income as the separate property of one spouse.

Not all states recognize the validity of post-nups so they are not as widely used as the pre-nup. Even if the post-nup is valid in your state, there are several issues critical to a valid post-nup.
1. There must be full disclosure of each spouse's assets.
2. Neither person can be coerced or under duress when signing the post-nup.
3. The agreement has to be fair to both parties.
4. Both spouses should have their own attorney.

The last point may be the most important. Always see an attorney when considering a post-nup or a pre-nup.

If you forgot to do a pre-nup or have had a change in your financial situation because of a new business or large inheritance, the post-nup may head-off major financial issues you and your spouse never even considered pre-marriage.

Keller Smith is an attorney with The Keller Law Firm in Manhattan Beach, California; she can be reached at www.kellerlawfirm.com. She contributes a column once per month.