Why couples make one

• One person starts or inherits a business and both want clarity about how it would be treated.
• A significant inheritance arrives and the couple want to record how it is held.
• One person leaves paid work to raise children, and both want to protect the position of the person giving up earnings.
• There has been a serious rupture in the marriage and putting the finances on a clear footing is part of deciding to continue.
• The couple meant to make a prenup and ran out of time before the wedding.

How it differs from a prenup

The subject matter is much the same. The legal context is not. Once you are married, you already have rights and obligations to each other, and a postnuptial agreement asks one or both of you to give some of those up. Courts in many states therefore examine postnups more closely than prenups, looking harder at whether the agreement is fair and whether both people entered it freely and fully informed.

A few states are notably restrictive about postnuptial agreements. Whether one is enforceable at all where you live is the first question to ask, and it is a question for an attorney licensed in your state.

What makes one hold up

• Complete written financial disclosure by both people.
• A separate attorney for each of you, genuinely advising rather than witnessing a signature.
• Terms that a court would recognise as fair rather than plainly one-sided.
• No pressure, and a clear record that neither of you was rushed.

Where mediation helps

Postnuptial conversations are often more emotionally loaded than prenuptial ones, because there is usually a reason they are happening now. A neutral mediator can keep that conversation focused on what each of you needs rather than on what has gone wrong, and can slow it down when it starts to move too fast.

As with a prenup, the mediator does not advise either of you and does not produce the final document. That is for your own attorneys.