The differences between a pre-nuptial agreement and a post-nuptial agreement are very simple. A pre-nuptial agreement is drafted before a couple is married and a post-nuptial agreement is drafted after the couple is married. There are advantages and disadvantages to both, which vary greatly depending on circumstances of your situation.
Pre-nuptial agreements:
The document must be drafted before the couple is married. It is best that both parties have separate legal representation by a certified family law attorney so that later on neither party can argue the document by claiming that they did not have proper legal representation. A pre-nuptial agreement can be used to out-line property, child custody and finical assets. A pre-nuptial agreement can be amended as long as the couple has yet to get married but doing a post-nuptial agreement will void the current pre-nuptial. A pre-nuptial agreement should protect both parties. If you feel a pre-nuptial agreement is one-sided then you should reconsider what is out-lined. Having a pre-nuptial agreement can make a divorce go smoother, if that later becomes relevant.
Living in a community property state can have an impact upon your pre-nuptial agreement. You should be honest with both your legal counsel and your spouse when writing a pre-nuptial agreement. Attempting to hide facts can result in you not giving full disclosure and result in nullifying the contract. If you have funds separately from your future spouse (even if you had these funds prior to meeting them) you need to disclose the existence of these funds to your spouse and your legal counsel. Many factors can impact your pre-nuptial agreement so you should never see them as a 100% safe-guard. You should be honest with your future spouse on why you feel the need to enter into a pre-nuptial agreement and both parties should agree that this document is necessary.
Post-nuptial agreements
You can have a post-nuptial agreement even if you did not have a pre-nuptial agreement. A post-nuptial agreement can be done at any time after you are married, even if you are separated but have yet to file for divorce. It is best that both parties have separate legal representation by a certified family law attorney so that later on neither party can argue the document by claiming they did not have proper legal representation. A post-nuptial agreement may be able to save your marriage by stopping the fight over finical issues. A post-nuptial agreement can be used to out-line property, child custody and finical assets. Doing a post-nuptial agreement can make your divorce go smoother if that later becomes relevant. Post-nuptial agreements can be amended if circumstances change.
Living in a community property state can have an impact upon your post-nuptial agreement. When done correctly a post-nuptial agreement will benefit both parties. You should strongly reconsider the agreement if you feel it is one-sided. You should be honest with both your legal counsel and your spouse when writing a post-nuptial agreement. Attempting to hide facts can result in you not giving full disclosure and result in nullifying the contract. If you have funds separately from your spouse (even if you had these funds prior to the marriage) you still need to disclose the existence of these funds to your spouse and your legal counsel. If you are already separated, then you should be realistic about the chances of getting a divorce. The longer a marriage last the more difficult it is to separate financially from the other party. Many factors can impact your post-nuptial agreement so you should never see them as a 100% safe-guard.