Last Updated November 15, 2023
What is a Postnuptial Agreement?
A Postnuptial Agreement is a contract married spouses create while they’re still committed to one another. It outlines financial responsibilities, assets, and debt ownership in case of a divorce.
Although similar to a Prenuptial Agreement, a Postnuptial Agreement is distinctive because you create one after marriage — not before.
Within a Postnuptial Agreement, you can also outline inheritance for a surviving spouse in case of a spouse’s death and other obligations spouses have if they ever separate or divorce.
A Postnuptial Agreement is also known as a:
- Postnup
- Postmarital agreement
- Marriage contract
Why should I get a Postnuptial Agreement?
A Postnuptial Agreement protects your and your spouse’s interests and encourages honest communication in an existing marriage. More specifically, having a Postnuptial Agreement in the event of a separation or divorce can:
- Protect both spouses’ finances and assets
- Protect children from both previous and current marriages
- Establish ownership of a home or business
- Protect both spouses’ emotions and mental health
- Prevent future legal disputes and save both spouses' money
- Minimize arguments
If you are unmarried and don’t plan on getting married, use a Cohabitation Agreement to manage your assets and finances.
Purposes of a Postnuptial Agreement
A Postnuptial Agreement financially protects you and your spouse during a possible divorce, separation, or death. More specifically, the purposes of a Postnuptial Agreement include:
- Protecting an inheritance. If you or your spouse are to inherit significant assets, a Postnuptial Agreement will protect the ownership of those assets in case of divorce or separation.
- Providing for a stay-at-home spouse: If you or your spouse supports the other as a stay-at-home parent or spouse, a Postnuptial Agreement will outline any support in case of divorce or separation.
- Deciding how to divide debts and assets: In the event of a divorce or separation, the division of your debts and assets will follow your Postnuptial Agreement outline, and your separate assets stay with you.
Protecting beneficiaries in estate planning: If one spouse passes before the other, the beneficiaries of the deceased’s Last Will and Testament will be protected to receive their inheritance, and the surviving spouse will receive only what the Will or Postnuptial Agreement provides.
Postnuptial Agreement versus Prenuptial Agreement
A Postnuptial Agreement and a Prenuptial Agreement are similar documents because they outline spousal responsibilities if a divorce or separation occurs. There is a key difference between the two documents, which is.
- A Postnuptial Agreement is created by couples who are already married and committed to one another.
Suppose you have a Prenuptial Agreement that no longer suits your needs after marriage. In that case, you and your spouse can mutually agree to cancel it and create a Postnuptial Agreement to better fit your current situation.
Postnuptial Agreement versus divorce
You don’t need to get a divorce to create a Postnuptial Agreement. Also, making a Postnuptial Agreement doesn’t mean you will get a divorce soon. A Postnuptial Agreement is a just-in-case document should a divorce or separation occur.
Don’t use a Postnuptial Agreement if you are already considering divorce. In this case, use a Separation Agreement to outline the terms of a separation. A Postnuptial Agreement may not be valid if it is used instead of a Separation Agreement.
How to write a Postnuptial Agreement
You can write a Postnuptial Agreement by using LawDepot’s customizable document. Fill out the questionnaire with the following information:
First, start by providing both spouses’ names and home addresses.
2. List of assets
Provide a list of assets as follows:
- Separate assets: Separate assets are owned by one party who will retain control in case of separation or divorce.
- Shared assets: Shared assets are assets that the parties co-own. In the event of a breakup, shared assets are typically divided between spouses, or one party pays half of the asset's value to the other party.
Many assets become shared property once a couple gets married. These shared assets may include:
- Real estate property purchased during the marriage
- Retirement savings or retirement plans
- Stocks purchased during the marriage
You can determine how to divide these assets and any future shared property in your Postnuptial Agreement.
3. Division of shared assets
Determine and specify the division of the shared assets. By default, courts will distribute assets either 50/50 or equitably (i.e., fairly).
Equitable distribution doesn't always result in a 50/50 split. The default method will depend on your state. You can also choose to divide a shared asset based on each spouse’s financial contribution toward the asset.
4. List of debts
Provide a list of debts as follows:
- Separate debts: Each party is solely responsible for their separate debt in case of a breakup, such as student loans, personal loans, or personal credit card balances.
- Joint debts: Joint debts (also known as shared debts) are those that both parties are legally responsible for in case of a breakup, such as co-signed loans, joint credit cards, and mortgages.
5. Division of shared debts
Determine and specify the division of the shared debts. Most spouses split shared debts equally.
Provide information for the dependent children from the current marriage and those from previous relationships. A dependent child is a biological or adopted child that the parents are legally obligated to support. Generally, a dependent refers to a child under 18 years who is under the care of an adult.
Including dependent children in Postnuptial Agreements is essential because they can have an inheritance or other rights that could impact the agreement.
7. Spousal support terms
Outline the terms for spousal support. Spousal support is a financial payment made by one spouse to the other in the event of separation and is also known as alimony or spousal maintenance. Spousal support helps the spouse with a lower income maintain their standard of living until they can earn a higher income to support themselves.
The amount and length of spousal support payments depend on several factors, such as:
- The marriage’s duration
- The lower-earning spouse’s future earning potential
- Individual contributions during the marriage
- Each party’s health
Addressing spousal support in your Postnuptial Agreement is entirely optional. If you don't decide on spousal support, the applicable state or federal laws will determine your spousal support in the event of a divorce.
8. Terms of surviving spouse's inheritance
Depending on your circumstances, you may restrict what you and your spouse can inherit from each other’s estate. People may restrict their spouse’s inheritance because they wish to leave their estate to other parties. For example, if you want to ensure the care of your children from a previous relationship, you may restrict your spouse’s inheritance.
Restricting a surviving spouse’s inheritance means they will only inherit what their spouse's Last Will or the Postnuptial Agreement states. It also means that they agree not to claim the other’s estate.
9. Additional clauses
LawDepot’s questionnaire allows you to add additional clauses to a Postnuptial Agreement. The types of terms that you should not address include:
- Anything illegal or immoral, such as clauses detailing any illegal acts or requirements
- Child custody or visitation terms
- Parenting rights
- Child support terms
- Any terms that may not be in the best interests of your children
- Unfair terms that favor one spouse over the other
- Any terms regarding physical appearance
- Clauses about infidelity or chastity
Can I include a pet in a Postnuptial Agreement?
Yes, you can include a pet in a Postnuptial Agreement because pets are considered property. Depending on your circumstances, one spouse may take full ownership. If you and your spouse are co-owners and your relationship ends, use a Pet Agreement to settle disputes over the pet’s care.
Is a Postnuptial Agreement legally binding?
Yes, a Postnuptial Agreement is a legally binding contract, assuming it contains all the necessary elements of a contract. Therefore, courts treat Postnuptial Agreements like other contracts.
To be legally binding, Postnuptial Agreements must follow these requirements:
- The agreement isn’t created through fraud, duress, deceit, coercion, mistake or misrepresentation
- The spouses fully disclose their finances and all material facts
- The agreement’s terms are fair and equitable
Each state has guidelines and requirements for a Postnuptial Agreement to be recognized. Adequate consideration is required in most states, meaning both sides must give up and receive something in exchange.
In the case of spousal support, the court may uphold a waiver of spousal support as long as the waiver follows the requirements for validity and isn’t unfair to one party.
LawDepot includes a severability clause in your Postnuptial Agreement to ensure that the rest of your agreement is still enforceable if a court finds the waiver of spousal support unenforceable.
Where can I use a Postnuptial Agreement?
Each state has its own laws on executing a Postnuptial Agreement in a separation or divorce. Check your local county for further information on how they enforce Postnuptial Agreements.
LawDepot’s Postnuptial Agreement questionnaire is available for all states except Ohio. It is also available for the District of Columbia, the U.S. Virgin Islands, and Guam.
Do I need a lawyer for a Postnuptial Agreement?
LawDepot’s Postnuptial Agreement questionnaire allows you to choose if you and your spouse wish to have separate lawyers present and review your agreement when signing.
Many courts will thoroughly review Postnuptial Agreements to ensure the agreement is conscionable and fair. Part of this examination involves determining if both spouses fully know what they are signing.
For this reason, some courts have found an agreement unenforceable where a spouse did not receive independent legal advice or at least the opportunity to do so. Depending on your state or county requirements, it is recommended that each spouse receive independent legal advice before signing the agreement.
Is it too late for a Postnuptial Agreement?
If you’re newly married or have been married for years, it’s not too late to make a Postnuptial Agreement. The only time you wouldn’t be able to consider one is if you and your spouse have already decided to separate or divorce. You can make a Postnuptial Agreement anytime after marriage and create new agreements as your life changes.