Post-Nups on the Rise: Updating Agreements as Wealth Grows

Marriage is a partnership built on shared values and mutual trust. When we say “I do,” most of us aren’t thinking about the possibility of divorce or the need to plan for financial what-ifs. Yet, for many couples, especially those whose financial lives have changed dramatically since their wedding day, a postnuptial agreement has become a practical and important tool for protecting assets and providing clarity.

Postnuptial agreements, often called “post-nups,” are legal contracts created by a married couple. They define how assets and debts would be divided in the event of a separation or divorce. While prenuptial agreements—signed before the wedding—have long been a standard for those with significant wealth, post-nups are gaining popularity. They offer couples a way to formalize their financial arrangements later in their marriage, particularly as their careers advance, their businesses grow, or they receive an inheritance.

How Do West Virginia Courts View Postnuptial Agreements?

West Virginia law acknowledges and generally upholds postnuptial agreements, but they must meet certain requirements to be considered valid and enforceable. The courts will examine these contracts with a higher degree of scrutiny than they would a standard business contract because of the confidential relationship between spouses.

For a postnuptial agreement to stand up in court, it must meet several key conditions:

Voluntary Execution: Both parties must sign the agreement freely and voluntarily. There can be no evidence of coercion, duress, or undue influence. The court will look at whether both spouses had sufficient time to review the document and consult with their own independent legal counsel.
Full Financial Disclosure: This is a vital requirement. Both spouses must provide a complete and accurate disclosure of all their financial assets and liabilities. This includes not only bank accounts and real estate, but also complex assets like business interests, stock options, and intellectual property. The failure to disclose assets can render the agreement invalid.
Fairness and Reasonableness: The terms of the agreement must be “fair and reasonable” at the time it was signed and also at the time of enforcement. This is the most subjective and often contested element. The court won’t enforce an agreement that is clearly one-sided and leaves one spouse in an unreasonable financial position. For example, a court would likely invalidate an agreement that waives spousal support when one spouse has no income and significant health issues.

It’s a misconception that a postnuptial agreement must result in an even 50/50 split of assets. West Virginia is an equitable distribution state, meaning courts aim for a fair division, not necessarily an equal one. A well-drafted post-nup can define what “fair” means to the couple, taking into account their unique circumstances.

When Is a Postnuptial Agreement a Good Idea?

Life is full of unexpected twists and turns. While you may have felt no need for a legal agreement at the beginning of your marriage, circumstances can change dramatically. A postnuptial agreement can be a wise choice in a number of scenarios:

Starting a New Business: If one spouse is launching a business or has an existing one that is beginning to take off, a post-nup can protect the business from being fully subject to division in a divorce. It can define the value of the business and how its appreciation will be handled.
Receiving an Inheritance or Gift: If a spouse receives a significant inheritance or a substantial gift from a family member, they may want to protect those separate assets from becoming marital property. A post-nup can clearly define these assets and prevent them from being commingled.
Changes in Financial Standing: Perhaps one spouse receives a promotion and a significant pay raise, or one decides to leave the workforce to raise children. A post-nup can rebalance financial responsibilities and protect the non-working spouse’s interests.
Addressing a Prenup’s Shortcomings: Sometimes a prenuptial agreement is signed in haste or without adequate detail. A post-nup can be used to clarify or update the terms of a previous agreement.
Reconciling After a Separation: Some couples who have separated but decide to reconcile use a postnuptial agreement to create a clear financial framework for their new beginning.
Protecting Children from a Prior Marriage: A post-nup can ensure that assets pass to children from a previous relationship, rather than being subject to division in a future divorce.

A well-crafted postnuptial agreement can provide peace of mind and prevent future disputes over complex financial matters. It allows a couple to make thoughtful decisions about their future together while they are still on good terms.

What Should a Postnuptial Agreement Address?

The contents of a postnuptial agreement can be as simple or as complex as the couple’s financial situation. The agreement’s terms must be carefully considered and drafted with precision to ensure they are enforceable. A comprehensive post-nup should address the following key areas:

Division of Property: This is the heart of the agreement. It should specify how both marital and separate property would be divided. The agreement can define what remains separate (e.g., an inheritance, a business) and what is considered a marital asset subject to equitable distribution.
Spousal Support (Alimony): A post-nup can waive the right to spousal support, set a specific amount, or outline the conditions under which support would be paid. In West Virginia, the court will still review this provision for fairness, particularly if it leaves one spouse in a dire financial situation.
Debt Allocation: The agreement can define how liabilities, such as credit card debt, mortgages, or business loans, would be divided.
Appreciation of Separate Property: This is an important consideration for business owners or those with significant pre-marital assets. The agreement can specify how the increase in value of a separate asset will be handled and whether that appreciation will be considered marital property.
Other Financial Obligations: The agreement can also address other financial matters, such as who is responsible for paying for a child’s college education or other significant expenses.

Postnuptial Agreements vs. Prenuptial Agreements: What’s the Difference?

While both agreements serve a similar purpose, there are important distinctions between a prenuptial and a postnuptial agreement.

Feature	Prenuptial Agreement	Postnuptial Agreement
Timing	Signed before the marriage takes place.	Signed after the couple is already married.
Legal Scrutiny	Generally upheld by courts, provided they meet state law requirements for fairness and disclosure.	Subject to a higher level of scrutiny because of the pre-existing marital relationship.
Purpose	To define rights and responsibilities before a marriage begins, often protecting pre-marital assets.	To redefine financial arrangements and update protections as a marriage evolves.
Disclosure	Requires full and fair disclosure of all financial assets and liabilities at the time of the agreement.	Requires the same level of full and fair disclosure, often complicated by commingled assets.

The most significant difference lies in the context. A prenuptial agreement is created when the relationship is still a business-like negotiation. A postnuptial agreement is entered into within the context of an existing marriage, which is why the legal standard for fairness and voluntariness is so strict.

The Role of Legal Counsel in a Postnuptial Agreement

While it may seem counterintuitive to involve lawyers in a financial agreement with your spouse, it is a vital step. The reason is simple: if the agreement is ever challenged in court, the validity of the document will depend on whether both parties had access to independent legal counsel and whether the agreement was drafted properly.

Independent Legal Representation: It is strongly recommended that each spouse hire their own lawyer. A single lawyer cannot represent both parties due to the inherent conflict of interest. Having separate counsel ensures that both parties’ interests are fully advocated for and that the agreement is not one-sided.
Full Disclosure: A lawyer can assist in the discovery process, ensuring that all assets and liabilities are fully disclosed as required by West Virginia law. This is especially important for complex assets like businesses and investment portfolios.
Drafting and Negotiation: A knowledgeable attorney can draft the agreement with precise language that is legally enforceable. They can also help negotiate terms that are fair to both parties.

Engaging with an attorney doesn’t have to be an adversarial process. It is about working collaboratively to create a durable, legally sound document that will provide clarity and security for the future.

Amending a Postnuptial Agreement

Like other legal contracts, a postnuptial agreement can be amended. As a couple’s financial life continues to evolve, they may need to update the agreement to reflect new circumstances. This could include adding newly acquired assets, changing terms regarding spousal support, or addressing changes in a business’s value. The process for amending a post-nup is similar to creating the original agreement: both parties must agree to the changes voluntarily, and it’s best to consult with legal counsel to ensure the amendments are properly drafted and legally binding.

What Happens if There Is No Postnuptial Agreement?

If a couple divorces without a prenuptial or postnuptial agreement, West Virginia’s equitable distribution laws will govern the division of their property. The court will determine what assets are marital and what are separate, and then divide the marital estate in a way it deems fair. This can lead to a long, expensive, and emotionally draining process.

Without a post-nup, a court would have to determine the value of a business, the appreciation of separate assets, and the amount of spousal support. This often requires the hiring of financial professionals and can lead to contentious and unpredictable outcomes.

Business Valuation: The court would have to determine the value of any business interests, a complex task that can result in a lengthy legal battle.
Appreciation of Separate Property: The court would have to figure out how much a separate asset’s value increased during the marriage and how to fairly divide that appreciation.
Alimony: A judge would decide whether to award spousal support and, if so, for how long and in what amount.

A postnuptial agreement can save a couple from this lengthy and uncertain process, giving them the power to make these decisions for themselves.

Securing Your Financial Future in West Virginia

The decision to create a postnuptial agreement is a personal one. For couples whose financial lives are becoming more complex, it is a practical step toward securing their future and protecting their assets. A post-nup is not a forecast of divorce; it is a collaborative tool for managing a family’s wealth and providing a strong foundation for whatever lies ahead.

At the Pence Law Firm, our team is dedicated to providing knowledgeable guidance on family law matters in West Virginia. We have worked with clients across the state to draft comprehensive and durable agreements that protect their assets and provide peace of mind. We are prepared to discuss your unique situation and help you determine a clear path forward for your financial future.

To schedule a confidential consultation, we invite you to contact us online or call our team directly at 304-345-7250.