Free Postnuptial Agreement

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Create Your Free Postnuptial Agreement

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Postnuptial Agreement

Create your Postnuptial Agreement


Create your Postnuptial Agreement

Where do you live?

Virginia

VirginiaBuilt for Virginia
Different states have different rules and regulations. Your Postnuptial Agreement will be customized for Virginia.


Frequently Asked Questions
Can we create a Postnuptial Agreement if we are already married?Yes, Postnuptial Agreements (also called Marriage Contracts) are intended to be created after a couple is legally married (during the marriage). If you wish to create an agreement prior to marriage, use our Prenuptial Agreement.

However, the Postnuptial Agreement is not meant to be used if you are contemplating separation or divorce; in that case, you need to use our Separation Agreement. In some cases, creating a Postnuptial Agreement in contemplation of divorce could invalidate the Postnuptial Agreement.
What if my state is not listed?If your state is not listed, it means that Postnuptial Agreements are not allowed in your state.What is required in a Postnuptial Agreement?A Postnuptial Agreement is a type of contract, between spouses, and is treated as such by the court. The requirements of the postnuptial contract are that:
  • The Agreement was not obtained through fraud, duress, deceit, coercion, mistake or misrepresentation.
  • The spouses must make full economic disclosure and disclose all material facts.
  • The Agreement must not be "unconscionable", i.e. it must be fair and more or less equitable.

Additionally, adequate consideration is required in most states. This generally means that both sides must give up something and receive something in exchange.


Your Postnuptial Agreement

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_______   _______ Page of

POSTNUPTIAL AGREEMENT

THIS POSTNUPTIAL AGREEMENT (the "Agreement") MADE ON THIS ________ day of ________________, ________

BETWEEN:

______________________
of _________________________

- AND -

______________________
of _________________________

  1. BACKGROUND
  2. This Agreement is made between ______________________ and ______________________ (collectively the "Parties" and individually a "Party") who are married to each other.
  3. The Parties intend for this Agreement to become effective upon execution by both Parties.
  4. The Parties wish to enter into this Agreement to provide for the status, ownership, and division of property between them, including future property owned or to be acquired by either or both of them.
  5. The Parties further wish to affix their respective rights and liabilities that may result from this relationship.
  6. The Parties desire that the distribution of any property that either or both of them may own will be governed by the terms of this Agreement and, insofar as the statutory or case law permits, intend that any statutes that may apply to them, either by virtue of Federal or State legislation, will not apply to them.
  7. The Parties acknowledge that they have been provided with a reasonable period of time to review this Agreement.
  8. The Parties also acknowledge that they have had the opportunity to retain their own lawyer and to receive independent legal advice regarding the terms of this Agreement.
  9. The Parties have disclosed to their satisfaction all assets and liabilities that each may have and voluntarily and expressly waive any other rights to disclosure of the property or financial obligations of each other beyond the disclosure provided.
  10. Each Party agrees and affirms THAT:
    1. The Parties did execute this Agreement voluntarily;
    2. This Agreement was not unconscionable when it was executed;
    3. Prior to execution of the Agreement, both Parties were provided a fair and reasonable disclosure of the property or financial obligations of the other Party;
    4. They have, or reasonably could have had, an adequate knowledge of the property or financial obligations of the other Party; and
    5. They entered into this Agreement freely and under no duress or undue influence on their decision by the other Party.
  11. The Parties acknowledge that this Agreement will continue upon termination of marriage whether by death, divorce, or otherwise.

NOW THEREFORE in consideration of the mutual promises and covenants contained in this Agreement, the Parties agree as follows:

  1. PROPERTY
  2. The Parties acknowledge that this Agreement will govern any determination of ownership of property that may occur in the event of the Parties separating, or upon the death of a Party.
  3. All jointly acquired or jointly held property, however and whenever acquired, will remain the property of and be owned by both Parties and will be treated as shared property (the "Shared Property").
  4. Except as otherwise provided in this Agreement, all property will be treated as property owned solely by either one of the Parties (the "Separate Property") except where:
    1. it is Shared Property; or
    2. there is proof of shared legal ownership.
  5. Nothing in this Agreement will prevent or invalidate any gift, or transfer for value, from one Party to the other of present or future property.
  6. Unless a Party can reasonably show that they solely own a piece of property, where either Party commingles jointly owned property with Separate Property, any commingled property will be presumed to be Shared Property.
  7. DEBTS
  8. The Parties acknowledge that this Agreement will govern any determination of responsibility of debts that may occur in the event of the Parties separating, or upon the death of a Party.
  9. All jointly acquired or jointly held debts, however and whenever acquired, will remain the debts of and be owed by both Parties and will be treated as shared debts (the "Shared Debts").
  10. Except as otherwise provided in this Agreement, all debts will be treated as debts owed solely by either one of the Parties (the "Separate Debts") except where:
    1. it is Shared Debt; or
    2. there is proof of shared legal responsibility.
  11. MATRIMONIAL PROPERTY RELEASE
  12. The Parties covenant and agree that they are aware of the equitable distribution laws of the Commonwealth of Virginia, and that it is their intention that the equitable distribution laws will not apply to the status, ownership, interest and division of their property, either jointly or separately owned, nor to their future property, whether real or personal, and owned by either one or both of them, and the Parties further covenant and agree that it is their desire and intent by the terms of this Agreement to contract out of the equitable distribution laws of the Commonwealth of Virginia, and to make a full and final settlement of all matters of property, both real and personal, previously and presently owned by either of the Parties or to be acquired by either of the Parties in the future.
  13. DOWER, CURTESY AND HOMESTEAD RELEASE
  14. Each Party releases all dower, curtesy and homestead rights under any statute of the Commonwealth of Virginia, or any other jurisdiction whatsoever, that, but for this agreement, each would have in and to property in the name of the other, or in their names jointly or as tenants in common.
  15. SPOUSAL SUPPORT
  16. In the event of a separation the Parties agree that spousal support may be payable to one of the Parties on the basis of the Party's financial circumstances at the time of separation or otherwise. It is understood and accepted by each Party that spousal support will be determined according to the appropriate Federal or State laws.
  17. ESTATES AND TESTAMENTARY DISPOSITION
  18. Nothing in this Agreement will limit or affect any rights that each may acquire as spouse or surviving spouse in the property, assets or estate of the other spouse.
  19. Nothing in this Agreement will invalidate or prevent either Party from naming the other as a beneficiary by will or other testamentary disposition.
  20. SEVERABILITY
  21. Should any portion of this Agreement be held by a court of law to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the portion so held to be invalid, unenforceable, or void, will be deemed amended, reduced in scope, or otherwise stricken only to the extent required for purposes of validity and enforcement in the jurisdiction of such holding.
  22. INTENTION OF THE PARTIES
  23. Notwithstanding that the Parties acknowledge and agree that their circumstances at the execution of this Agreement may change for many reasons, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.
  24. DUTY OF GOOD FAITH
  25. This Agreement creates a fiduciary relationship between the Parties in which each Party agrees to act with the utmost of good faith and fair dealing toward the other in all aspects of this Agreement.
  26. FURTHER DOCUMENTATION
  27. The Parties agree to provide and execute such further documentation as may be reasonably required to give full force and effect to each term of this Agreement.
  28. TITLE/HEADINGS
  29. The headings of this Agreement form no part of it, and will be deemed to have been inserted for convenience only.
  30. ENUREMENT
  31. This Agreement will be binding upon and will enure to the benefit of the Parties, their respective heirs, executors, administrators, and assigns.
  32. GOVERNING LAW
  33. The laws of the Commonwealth of Virginia will govern the interpretation of this Agreement, and the status, ownership, and division of property between the Parties wherever either or both of them may from time to time reside.
  34. TERMINATION OR AMENDMENT
  35. This Agreement may only be terminated or amended by the Parties in writing signed by both of them.
  36. ENTIRE AGREEMENT
  37. The Agreement constitutes the entire agreement and understanding between the Parties to this Agreement and supersedes all prior communications, contracts, or agreements between these Parties with respect to the subject matter addressed in this Agreement, whether oral or written.

IN WITNESS WHEREOF the Parties have hereunto set their hands and seals on the ________ day of ________________, ________.

SIGNED, SEALED AND DELIVERED
In the presence of:

_____________________________
Lawyer
Printed Name: _________________

________________________
______________________

_____________________________
Lawyer
Printed Name: _________________

________________________
______________________


_____________________________
Witness
Printed Name: _________________

_____________________________
Witness
Printed Name: _________________

________________________
______________________

_____________________________
Witness
Printed Name: _________________

_____________________________
Witness
Printed Name: _________________

________________________
______________________


CERTIFICATE OF INDEPENDENT LEGAL ADVICE


THE COMMONWEALTH OF VIRGINIA
COUNTY OF
_________________


I, _________________________, of the City of ___________________, in the Commonwealth of Virginia, Barrister and Solicitor, DO HEREBY CERTIFY:

THAT I was this day consulted in my professional capacity by ______________________, named in the within instrument, being a Postnuptial Agreement, separate and apart from ______________________, as to his or her legal rights and liabilities under the terms and conditions of it, and that I acted solely for him or her, and explained fully to him or her the nature and effect of the said Postnuptial Agreement and he or she did execute it in my presence, and did acknowledge and declare that he or she was executing it of his or her own volition and without any fear, threats, compulsion or influence from ______________________, or any other person.

DATED at the City of ___________________, in The Commonwealth of Virginia, this _____ day of _________, 20___.

________________________
BARRISTER & SOLICITOR
Print Name: _________________





I, ______________________, the person named in the annexed Agreement, hereby acknowledges the foregoing this ____day of ______________20___.


________________________
______________________


CERTIFICATE OF INDEPENDENT LEGAL ADVICE


THE COMMONWEALTH OF VIRGINIA
COUNTY OF _________________


I, _________________________, of the City of ___________________, in The Commonwealth of Virginia, Barrister and Solicitor, DO HEREBY CERTIFY:

THAT I was this day consulted in my professional capacity by ______________________, named in the within instrument, being a Postnuptial Agreement, separate and apart from ______________________, as to his or her legal rights and liabilities under the terms and conditions of it, and that I acted solely for him or her, and explained fully to him or her the nature and effect of the said Postnuptial Agreement and he or she did execute it in my presence, and did acknowledge and declare that he or she was executing it of his or her own volition and without any fear, threats, compulsion or influence from ______________________, or any other person.

DATED at the City of ___________________, in The Commonwealth of Virginia, this _____ day of _________, 20___.

________________________
BARRISTER & SOLICITOR
Print Name: _________________





I, ______________________, the person named in the annexed Agreement, hereby acknowledges the foregoing this ____day of ______________20___.


________________________
______________________

Last Updated January 16, 2024

Written by


Reviewed by


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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
Take our 2024 Prenuptial Agreement Survey for a chance to win one of three $50 Amazon gift cards!

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: 

1. Party 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.

6. Information for dependent children

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.

Related Documents:

  • Separation Agreement: Outline the division of property, debts, child custody and visitation, and more when you and your spouse or partner choose to separate.
  • Prenuptial Agreement: Outline the division of your and your future spouse’s assets and responsibilities before you marry if you separate or divorce in the future.
  • Online Divorce: Prepare the necessary documents for a no-fault, uncontested divorce.
  • Last Will and Testament: Create instructions for how your assets will be distributed after you pass away.
  • Cohabitation Agreement: Write an agreement to outline your assets and create financial terms similar to a prenup if you're in a long-term, unmarried relationship.
  • Roommate Agreement: Divide expenses such as rent and utilities between roommates and address terms such as household rules and duties.
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