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FAQ: Should Doctors Get Pre-Nuptials and Post-Nuptials?

Divorce rates in the United States are high, with approximately 39% to 50% of marriages ending in divorce. For physicians, the rates are even higher, with one study indicating that 24% of female and 33% of male physicians reported being divorced. 

The demanding and often stressful nature of the medical profession, combined with long working hours and time away from family, can strain relationships and lead to divorce. Physicians need to be aware of these statistics and take steps to protect themselves and their assets in the event of a divorce. 

One such step is to consider a pre-nuptial or post-nuptial agreement. These legal agreements can outline how assets and property will be divided in the event of a divorce and provide both parties with a level of protection and peace of mind. 

A pre-nup (pre-nuptial) or post-nup (post-nuptial) agreement is a legal document that outlines the “division of assets and property” and what will happen to them if the marriage ends in divorce. A pre-nup agreement is signed before marriage, while a post-nup agreement is signed after marriage. 

On the other hand, a post-nuptial agreement is created after the couple is already married. It functions in the same way as a pre-nuptial agreement, but it’s signed during the marriage. In addition, a post-nuptial agreement may be created if a couple does not have a pre-nuptial agreement but would like to protect their assets.

These agreements can help protect assets acquired before and during the marriage, and they can also help clarify expectations regarding financial responsibilities and support in the event of a divorce.

For physicians, who often have high-earning potential and substantial student loan debt, a pre-nup or post-nup agreement can be particularly beneficial. It can help protect their assets, business interests, and retirement accounts in the event of a divorce while ensuring that their partner is not held responsible for their student loan debt.

It’s important to note that pre-nup and post-nup agreements are not just for wealthy individuals or those with complicated financial situations. Anyone who wants to protect their assets and clarify financial expectations can benefit from a pre-nup or post-nup agreement.

The Difference Between A Pre-Nuptial And A Post-Nuptial Agreement

Both pre-nuptial and post-nuptial agreements serve the same purpose — to protect a couple’s assets in case of a divorce. However, the main difference between the two is when they are created.

One significant difference between the two is the legality of the agreements. Pre-nuptial agreements are more widely accepted in courts than post-nuptial agreements. This is because pre-nuptial agreements are signed before the marriage when both parties clearly understand what they are getting into.

Signing a Prenuptial Agreement

Post-nuptial agreements can be seen as an attempt to change the rules of the marriage. Therefore, both partners must get independent legal advice before signing a post-nuptial agreement to avoid legal issues. 

In some states, courts favor people’s rights to reach agreements about handling their assets and finances upon death and divorce. This means that pre-nuptial and post-nuptial agreements are more likely to be upheld in court.

One of the advantages of having a pre-nuptial or post-nuptial agreement is that it lets you and your partner clearly define what happens to your assets in case of divorce. It can also protect you from assuming your partner’s debts or liabilities.

Getting A Legally Valid Pre- Or Post-Nup Agreement

It’s important to note that pre-nuptial and post-nuptial agreements should be in writing and can’t be obtained through “fraud, duress, misrepresentation, or nondisclosure of material facts. The agreements should not be unconscionable when executed.”

One major difference between the two agreements is the concept of consideration — what each person receives in exchange for making the agreement. In a post-nup agreement, parties must identify other benefits each of them is receiving in exchange for what they agree to do or forego.

Courts have been less likely to uphold post-nuptial agreements because they encourage separation or divorce. But in recent years, courts have begun to acknowledge that post-nuptial agreements can be a useful tool to preserve marriages.

Getting a Legally Valid Prenuptial Agreement

Following a Michigan Supreme Court prenup case in 2016, family law attorneys are “watching for cases and legislation that may limit parties’ ability to contract around a court’s equitable powers to decide what is fair in a divorce.”

To make sure that your pre-nuptial or post-nuptial agreement is legally valid and tailored to your specific situation, it’s recommended that you consult an attorney to discuss the facts of the situation and see what additional issues or language need to be considered.

Benefits Of Having A Pre- Or Post-Nuptial Agreement

There are several benefits to having a pre-nup or post-nup agreement as a physician. Some of the key benefits are:

1. Protection of assets: One of the biggest benefits of a pre-nup or post-nup agreement is that it can help protect your assets in case of a divorce. As a physician, you likely have significant assets, such as property, investments, and retirement accounts. A pre-nup or post-nup can ensure that these assets are protected and that you are not financially devastated by a divorce.

2. Clarification of financial responsibilities: A pre-nup or post-nup agreement can help clarify the financial responsibilities of each spouse during the marriage. This can help avoid conflicts and misunderstandings down the road.

3. Avoidance of long and costly divorce proceedings: With a pre-nup or post-nup agreement in place, the terms of the divorce can be settled much more quickly and easily, avoiding long and costly court battles.

A Long and Costly Divorce Proceeding

4. Preservation of business interests: If you are a physician who owns a medical practice or other business, a pre-nup or post-nup agreement can help ensure that your business interests are protected and that you can continue to run your business without interference from your spouse.

5. Protection of children from previous marriages: If you have children from a previous marriage, a pre-nup or post-nup agreement can help protect their inheritance and ensure that your assets are distributed according to your wishes.

Overall, a pre-nup or post-nup agreement can provide peace of mind and help protect you in case of a divorce. As a physician with significant assets, it is important to consider whether a pre-nup or post-nup agreement is right for you and your family.

Reasons Not To Get A Pre-Nup Or Post-Nup Agreement

Not everyone thinks a pre- or post-nup agreement is necessary or even wise to get. Some of the reasons for choosing not to get one include:

1. Belief in the sanctity of marriage: Some individuals may view a pre-nup/post-nup agreement as planning for the possibility of divorce, which goes against their beliefs about the sanctity of marriage.

2. Cost: Pre-nup/post-nup agreements can be expensive to draft and execute. Some physicians may feel that the cost outweighs the potential benefits.

3. Trust in their partner: Some physicians may feel that they have a strong and trusting relationship with their partner and that a pre-nup/post-nup agreement is unnecessary.

Trust in a Partner

4. Complexity: Pre-nup/post-nup agreements can be complex legal documents that require significant time and effort to create. Some physicians may not want to deal with the complexity of the process.

5. Emotions: Discussing a pre-nup/post-nup agreement can be a sensitive topic that can trigger negative emotions. Some physicians may not want to engage in this type of discussion with their partners.

6. Lack of assets: Physicians who do not have significant assets or financial holdings may not see the need for a pre-nup/post-nup agreement.

7. Cultural or religious beliefs: Pre-nup/post-nup agreements may not be considered appropriate or necessary in some cultures or religions.

Ultimately, the decision to get a pre-nup/post-nup agreement is personal and should be made after careful consideration and discussion with a partner and legal counsel. While there are potential benefits to having a pre-nup/post-nup agreement, there are also valid reasons why some physicians may choose not to pursue this option.

How To Talk About Getting A Pre-Nup Or Post-Nup Agreement With Your Partner

While the topic of pre-nuptial or post-nuptial agreements can be sensitive and uncomfortable to discuss with a partner, it’s important to approach the conversation in a mature and understanding manner.

A Couple Talking About Getting a Prenup

Here are some tips on how to have the conversation:

  • Choose the right timing: Avoid bringing up the topic during an argument or at an emotionally charged moment. Pick a calm and private setting where both partners can openly communicate.
  • Start the conversation early: The earlier the discussion, the easier it is to address any concerns or negotiate terms. Bringing up a pre-nup/post-nup agreement early in the relationship can help prevent misunderstandings down the line.
  • Express your intentions: Explain why you want a pre-nup/post-nup agreement. Share your reasons, such as protecting assets or simplifying a divorce process.
  • Listen to your partner’s concerns: Be open to your partner’s thoughts and opinions. Address their concerns and discuss possible solutions that both parties can agree on.
  • Get professional guidance: Consider meeting with a family law attorney or financial planner to help guide the conversation and determine what terms should be included in the agreement.

Remember, discussing a pre-nup/post-nup agreement doesn’t mean you love or trust your partner any less. It’s just a practical decision that can ultimately protect both parties in the long run.

Terms A Pre-Nup And Post-Nup Agreement Can Address

Pre-nuptial and post-nuptial agreements can help couples preempt financial hassles and arguments common in divorce. These contracts set out how assets will be divided and other pertinent issues in the event of a divorce. 

Without such a contract, the courts may have to make decisions about the couple’s property and support obligations in the case of a contested divorce.

Signing a Postnuptial Agreement

The following are some elements that can be included in the contract:

  • Division of assets: This outlines how marital property, such as real estate, investments, and other assets, will be divided if the couple separates. It can also specify which properties are considered marital and which are not.
  • Spousal support: This details the financial support that one spouse will receive from the other during and after the divorce.
  • Child support: This addresses the care and financial support of any children born or adopted during the marriage. The contract may also specify how many children are covered and for how long.
  • Custody arrangements: This outlines who will have physical custody of any children and how much visitation time the non-custodial parent will have.
  • Tax liabilities: This can address how taxes will be filed and who is responsible for tax liabilities.
  • Inheritance rights: This determines how property is passed down in the case of death and how beneficiaries will be designated.
  • Life insurance policies: This outlines how life insurance policies will be handled and the beneficiaries.
  • Retirement accounts: This addresses how retirement accounts will be divided and how distributions will be made.

It’s essential to remember that these are just some examples of the terms that can be included in a pre-nup or post-nup agreement. Couples can work with their lawyers to determine the best elements for their unique situation.

How The Court Views Pre-Nuptial And Post-Nuptial Agreements

It is important to understand what the court will consider when reviewing a pre- or post-nuptial agreement. The court will want to ensure that both parties fully disclose all their financial information before signing the agreement. This is to prevent one party from hiding assets or debts from the other.

It is also important that each party has its own separate legal counsel. This is to avoid any potential for collusion or coercion between the parties. Having separate attorneys ensures that both parties understand the terms and have the opportunity to negotiate the agreement to their satisfaction.

Reviewing a Prenuptial Agreement

Another factor the court will consider is the timing of the agreement in a pre-nuptial agreement. Ideally, the agreement should be negotiated and executed well before the wedding date to prevent any claim of duress. This means that both parties had ample time to review and negotiate the agreement, and neither party felt pressured to sign it under duress or coercion.

Ultimately, the court wants to ensure that the pre- or post-nuptial agreement was entered voluntarily, with full knowledge of the facts, and without any undue influence or pressure. If these factors are met, the court will likely uphold the agreement as valid.

How Often Should You Update Your Pre-Nuptial/Post-Nuptial Agreement?

It is recommended that pre-nuptial and post-nuptial agreements be revisited at least once a year to ensure that they are still applicable and relevant to the parties’ current circumstances. It’s important to remember that the current form of the agreement binds the parties and should not be forgotten.

When reviewing the agreement, it’s critical to consider whether any changes in your personal or financial situation have occurred since the agreement was first made. If significant changes have happened, such as acquiring new assets or experiencing a major life event, you may want to amend or even discard the agreement altogether.

Updating a Prenuptial Agreement

It’s also important to note that pre-nuptial and post-nuptial agreements can be impacted by changes in the law. Marriage and property rights laws can vary from state to state, so it’s important to review your agreement with a qualified attorney who can advise you on any legal changes that may impact the agreement.

Whether or not to get a pre- or post-nuptial agreement is a highly personal decision, but as an entrepreneurial MD, it’s a tremendously important one. This is just one of the ways I’m committed to helping doctors build profitable businesses so they can live life and practice medicine on their own terms.