What is a Postnuptial Agreement?
A Postnuptial Agreement is a written contract two spouses create after entering into a marriage while they’re committed to one another. Spouses use Postnuptial Agreements to outline the division of their assets and responsibilities if they separate or divorce.
Within a postnup, you can also outline inheritance in case of a spouse's death. Thinking about inheritance is most important for couples with children from past marriages.
A Postnuptial Agreement is similar to a Prenuptial Agreement because both documents outline the terms of a potential separation or divorce. However, a Postnuptial Agreement is distinctive because you create one after you’ve married your spouse. In contrast, you can only create a prenup before you marry.
A Postnuptial Agreement is also known as a:
- Postnup
- Postmarital agreement
- Marriage contract
Does using a Postnuptial Agreement mean I have to divorce?
No, not at all. Creating a Postnuptial Agreement doesn’t mean that your marriage will end. Within most marriages, there is always a chance of separation or divorce. Regardless of whether you create a postnup, you and your spouse are in control of your relationship’s future.
In many cases, a postnup is a just-in-case document. You may never reference your Postnuptial Agreement or present it to a judge.
Some couples may recognize that, statistically, many marriages end. They may understand the possibility of separation or divorce and plan ahead to prevent future conflict. Being realistic and planning ahead doesn’t mean a relationship is destined to end.
However, if you and your spouse are contemplating separation, you should not use a postnup. Instead, use a Separation Agreement. Creating a postnup in contemplation of separation could invalidate your postnup.
Why are Postnuptial Agreements important?
Postnuptial Agreements protect both spouses’ interests and encourage honest communication. More specifically, having a Postnuptial Agreement in the event of a separation or divorce can:
- Protect both spouses’ finances and assets
- Establish ownership of a home or business
- Protect both spouses’ emotions and mental health
- Save both spouses money
- Prevent ongoing court battles
- Minimize arguments
What assets can I divide in a Postnuptial Agreement?
In a Postnuptial Agreement, spouses outline the division of their shared property (also known as shared assets). Shared property refers to assets that the parties co-own. Many assets become shared property once you marry your spouse. These shared assets may include:
- Real estate property purchased during the marriage
- Retirement savings or retirement plans
- Stocks purchased during the marriage
In your agreement, determine how to divide these assets, as well as any future shared property.
How do I create a Postnuptial Agreement?
Create a Postnuptial Agreement by using our printable template. Fill out our questionnaire and provide the following information.
1. Party information
First, provide both spouses’ names and home addresses.
2. List of separate assets
Provide a list of each spouse’s separate assets. Separate assets are owned by one party who will retain control of them in the event of a separation or divorce.
3. List of shared assets
Provide a list of 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.
4. 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 decide to divide a shared asset based on each party’s financial contribution towards the asset.
5. List of separate debts
Provide a list of each spouse’s separate debt. Each party is solely responsible for their own separate debt in the event of a breakup.
6. List of shared debts
Provide a list of the shared debts. Shared debts (also known as joint debts) are debts that both parties are legally responsible for in the event of a breakup, such as co-signed loans, joint credit cards, and mortgages.
7. Division of shared debts
Determine and specify the division of the shared debts. Most spouses split shared debts equally.
8. Information for dependent children
Provide information for the spouses’ dependent children and dependent children from past relationships. A dependent child is a biological or adopted child that the parents have a legal obligation to support. Generally, a dependent refers to a child under the age of 18 years.
It’s important to include dependent children in Postnuptial Agreements because they can have an inheritance or other rights that could impact the agreement.
9. Spousal support terms
Outline the terms for spousal support. Spousal support, also known as alimony or spousal maintenance, is a financial payment made by one spouse to the other in the event of separation. 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 completely optional. If you don't make a decision, the applicable state or federal laws will determine your spousal support at the time of your breakup.
10. Terms for a surviving spouse’s inheritance
Depending on your circumstances, you may restrict what you and your spouse can inherit from each other’s estate. Often, people restrict their spouse’s inheritance so their estate can be given to other parties. For example, if someone wants to ensure the care of their children from a previous relationship, they may restrict their spouse’s inheritance.
Restricting the surviving spouse’s inheritance means that they will only inherit what is given in their spouse's Last Will or the Postnuptial Agreement. Also, it means that they agree not to claim the other’s estate.
Can I include a pet in a Postnuptial Agreement?
Yes, you could include a pet in a Postnuptial Agreement because pets are considered property. Depending on your circumstances, one spouse may retain control If you and your spouse are co-owners of a pet and your relationship ends, use a Pet Agreement to settle disputes over the pet’s care.
Is a Postnuptial Agreement legally binding?
A Postnuptial Agreement is a contract between spouses. Therefore, courts enforce Postnuptial Agreements like other contracts.
To be legally binding, Postnuptial Agreements must follow these requirements:
- The agreement wasn’t obtained through fraud, duress, deceit, coercion, mistake, or misrepresentation
- The spouses fully disclosed their finances and all material facts
- The agreement’s terms are fair and equitable
Additionally, adequate consideration is required in most states. This generally means that both sides must give up something and receive something in exchange.
When can I create a Postnuptial Agreement?
You can create a Postnuptial Agreement at any time during your marriage. Postnuptial Agreements can be useful in both new and established marriages. If you need an agreement prior to marriage, use a Prenuptial Agreement.
Don’t use a Postnuptial Agreement if you’re contemplating separation or divorce. If you want to outline the terms of a separation or divorce, use a Separation Agreement. In some cases, creating a Postnuptial Agreement in contemplation of divorce could invalidate the contract.
If you aren’t married and have no plans of getting married, use a Cohabitation Agreement before you move in and combine assets with a partner to establish your financial security.
Where can I use a Postnuptial Agreement?
You can create a Postnuptial Agreement in almost every state. You can create a Postnuptial Agreement in the following states and territories:
- Alabama
- Alaska
- Arizona
- Arkansas
- California
- Colorado
- Connecticut
- Delaware
- District of Columbia
- Florida
- Georgia
- Guam
- Hawaii
- Idaho
- Illinois
- Indiana
- Iowa
- Kansas
- Kentucky
- Louisiana
- Maine
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Mississippi
- Missouri
- Montana
- Nebraska
- Nevada
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Oklahoma
- Oregon
- Pennsylvania
- Rhode Island
- South Carolina
- South Dakota
- Tennessee
- Texas
- U.S. Virgin Islands
- Utah
- Vermont
- Virginia
- Washington
- West Virginia
- Wisconsin
- Wyoming
Is a court bound to spousal support terms in a Postnuptial Agreement?
Generally, a court will uphold a waiver of spousal support so long as the waiver was made knowingly, willingly, without coercion, and isn’t blatantly unfair to one party. If any of these has occurred, the court may find the waiver unenforceable and order spousal support.
If a court finds the waiver of spousal support unenforceable, LawDepot includes a severability clause in your Postnuptial Agreement to ensure that the rest of your agreement is still enforceable.
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