Postnuptial Agreement

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Postnuptial Agreement

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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 _________________________

BACKGROUND
This Agreement is made between ______________________ and ______________________ (collectively the "Parties" and individually a "Party") who are married to each other.
The Parties intend for this Agreement to become effective upon execution by both Parties.
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.
The Parties further wish to affix their respective rights and liabilities that may result from this relationship.
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.
The Parties acknowledge that they have been provided with a reasonable period of time to review this Agreement.
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.
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.
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.
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:

PROPERTY
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.
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").
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.
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.
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.
DEBTS
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.
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").
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.
MATRIMONIAL PROPERTY RELEASE
The Parties covenant and agree that they are aware of the equitable distribution laws of the State of Alabama, 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 State of Alabama, 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.
DOWER, CURTESY AND HOMESTEAD RELEASE
Each Party releases all dower, curtesy and homestead rights under any statute of the State of Alabama, 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.
SPOUSAL SUPPORT
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.
ESTATES AND TESTAMENTARY DISPOSITION
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.
Nothing in this Agreement will invalidate or prevent either Party from naming the other as a beneficiary by will or other testamentary disposition.
SEVERABILITY
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.
INTENTION OF THE PARTIES
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.
DUTY OF GOOD FAITH
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.
FURTHER DOCUMENTATION
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.
TITLE/HEADINGS
The headings of this Agreement form no part of it, and will be deemed to have been inserted for convenience only.
ENUREMENT
This Agreement will be binding upon and will enure to the benefit of the Parties, their respective heirs, executors, administrators, and assigns.
GOVERNING LAW
The laws of the State of Alabama 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.
TERMINATION OR AMENDMENT
This Agreement may only be terminated or amended by the Parties in writing signed by both of them.
ENTIRE AGREEMENT
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: _________________

________________________
______________________

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

THE STATE OF ALABAMA
COUNTY OF _________________

I, _________________________, of the City of ___________________, in the State of Alabama, Attorney, 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 State of Alabama, this _____ day of _________, 20___.

________________________
ATTORNEY
Print Name: _________________

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

________________________
______________________

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

THE STATE OF ALABAMA
COUNTY OF _________________

I, _________________________, of the City of ___________________, in The State of Alabama, Attorney, DO HEREBY CERTIFY:

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

________________________
ATTORNEY
Print Name: _________________

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

________________________
______________________

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Postnuptial Agreement Document Preview

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What is a Postnuptial Agreement?

A Postnuptial Agreement is a contract that 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.

Inheritance provisions must also comply with your state's probate and marital property laws.

A Postnuptial Agreement is also known as a:

Postnup
Postmarital agreement
Marriage contract

Postnuptial Agreement vs. Prenuptial Agreement

A Postnuptial Agreement and a Prenuptial Agreement are similar documents because they outline spousal responsibilities in the event of a divorce or separation.

There is a key difference between the two documents:

A Postnuptial Agreement is created by couples who are already married and committed to one another.

A Prenuptial Agreement is a domestic contract created before a couple is married.

You may also choose to amend or revoke an existing Prenuptial Agreement through a Postnuptial Agreement to better fit your current marital situation.

Postnuptial Agreement vs. 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 that sets out what will happen if a couple divorces or separates.

If you and your spouse have already decide to separate, some State laws may not consider a Postnuptial Agreement to be valid. As such, a Separation Agreement may be more appropriate to deal with parenting arrangements, support, and property division..

Purposes of a Postnuptial Agreement

A Postnuptial Agreement helps spouses proactively manage financial matters and protect individual interests in the event of divorce, separation, or death.

In addition, it can override default community property laws in some jurisdictions, as permitted by law, allowing couples to decide for themselves how property and debts should be divided.

The primary purposes of a Postnuptial Agreement include:

Protecting an inheritance: If you or your spouse is 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.

How does a Postnuptial Agreement work?

A Postnuptial Agreement defines how assets, debts, and financial responsibilities are divided if a marriage ends. It can specify which property remains separate—such as a business, inheritance, or pre-marital assets—and outline who’s responsible for certain debts or expenses.

If the couple separates, divorces, or one spouse passes away, the postnup governs how property and support are handled under the terms agreed upon, rather than default state laws. For example, if one spouse launches a business after marriage, the agreement can state that the business and any growth belong solely to that spouse, while compensating the other spouse through other assets or future support.

Key aspects of Postnuptial Agreements

A Postnuptial Agreement usually covers financial and property matters to help couples define clear terms in the event of separation, divorce, or death.

Separate property: Lists assets owned before marriage or received individually, such as inheritances, gifts, or personal investments.
Marital property division: Explains how shared assets—like real estate, savings, or pensions—will be split if the marriage ends.
Debt responsibility: Clarifies who is responsible for specific debts, including credit cards, student loans, or mortgages.
Spousal support: Outlines if, when, and how much alimony will be paid, or whether it’s waived (depending on local laws).
Business interests and insurance: Details how ownership of a business, future inheritances, and life insurance benefits will be handled.
Estate rights: States what each spouse is entitled to if one passes away, or whether those inheritance rights are waived.

Common reasons for using a Postnuptial Agreement

Couples use Postnuptial Agreements to clarify financial expectations or protect individual interests after marriage, especially when circumstances change. Common reasons include:

Inheritance or gifts: One spouse receives or expects a large inheritance or gift and wants to keep it separate.
Business ownership: A spouse starts or grows a business and wants to set clear ownership or buy-out terms.
Financial changes: One partner’s income, debt, or role in the household changes significantly—such as becoming a stay-at-home spouse.
Marital challenges: The couple experiences conflict, often over money or infidelity, and wants to rebuild trust with transparent financial terms.

Issues Covered by Postnuptial Agreements

Postnuptial Agreements can cover a wide range of financial and property matters, but some topics are restricted or unenforceable under the law. The table below outlines what these agreements typically can and cannot include:

Division of marital property: Defines how shared assets—like homes, vehicles, joint accounts, and investments—are divided.
Property classification: Distinguishes separate assets (inheritances, pre-marital property, gifts, or business interests) from marital property.
Spousal support (alimony): Sets conditions, amounts, or formulas for support payments—subject to local laws and limits.
Debt responsibilities: Allocates liability for existing or future personal, joint, or tax debts.
Business ownership and control: Clarifies ownership percentages, buy-out terms, and succession in the event of divorce or death.
Inheritance and estate rights: Determines whether spouses waive or confirm rights to each other’s estates.
Separation or divorce procedures: Establishes legal jurisdiction, mediation methods, or disclosure timelines.

Child custody and parenting time: Courts and mediation determine these based on the child’s best interests at the time of separation.
Child support: Courts retain authority to decide child support regardless of any pre-agreed terms.
Clauses encouraging divorce: Terms offering financial incentives to separate or divorce are generally unenforceable.
Illegal terms: Provisions requiring unlawful activity or hiding assets are invalid.
Highly personal conduct terms: Lifestyle rules, household duties, or intimacy clauses aren’t legally binding.
Waiver of protected rights: A spouse can’t waive essential legal rights, like the right to seek legal counsel or file for divorce.
Unfair or unconscionable provisions: Courts may reject agreements that are one-sided or unreasonable when signed.

Enforceability of Postnuptial Agreements

Postnuptial Agreements are generally enforceable if they follow state law, are entered into voluntarily with full financial disclosure from both spouses, and contain fair, reasonable terms. However, courts may refuse to enforce a postnup that involves fraud, coercion, hidden assets, extreme unfairness, or provisions that conflict with child or public-policy rules.

Additionally, each state has its own laws governing the execution of a Postnuptial Agreement in a separation or divorce. Check your local laws, or consult a local family law attorney, 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.

How to write a Postnuptial Agreement

You can write a Postnuptial Agreement by using LawDepot’s customizable document. First, select your location, then fill out the questionnaire with the following information:

1. Party information

Provide both spouses’ full names and home addresses.

2. List of assets

Provide a list of assets as follows:

Separate assets: Assets owned by one party that will retain control in the event of separation or divorce. This typically includes assets owned before the marriage, or certain gifts and inheritances received by one spouse alone.
Shared assets: Property acquired or built up during the marriage is typically considered to be common property.

Common assets amongst both 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. In a divorce, courts in most states will first distinguish marital/shared assets (typically assets acquired during the marriage) from separate assets (typically premarital assets and certain gifts/inheritances). Marital assets are then divided either equally, or equitably (fairly but not necessarily 50/50) depending on state law.

In your postnuptial agreement, you can decide to divide shared assets equally, or in another proportion you both agree to, in accordance with applicable state law.

4. List of debts

Provide a list of debts as follows:

Separate debts: Debts that only belong to one spouse, such as premarital debts, certain debts taken on after separation, or debts clearly attached to a spouse's separate property.
Joint debts: Joint debts (also known as shared debts) are those that both parties are legally responsible for in the event of a breakup. Typically, this includes co-signed loans, joint credit cards, mortgages, or other debts taken out by the couple during the marriage.

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 typically refers to a child under 18 years old (depending on specific state law) who is under the care of an adult.

Including dependent children in Postnuptial Agreements is essential because they may have inheritance rights or other rights that could affect how you structure your property or estate-planning provisions.

7. 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 lower-income spouse 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 separation or divorce.

8. Terms of the 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, and child support terms
Parenting rights
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

Postnuptial Agreement FAQ

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 and meets its state’s guidelines and requirements. 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
The Agreement has been executed in accordance with local state laws.

Are waivers of spousal support enforceable in a Postnuptial Agreement?

Each state has guidelines and requirements for a Postnuptial Agreement to be recognized. Adequate consideration is required in most states, meaning both parties must give up 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.

Do I need a lawyer for a Postnuptial Agreement?

Depending on your state or county requirements, it is recommended that each spouse receive independent legal advice before signing the agreement.

However, many courts will thoroughly review Postnuptial Agreements to ensure they are conscionable and fair. Part of this examination involves determining if both spouses fully know what they are signing.

LawDepot’s Postnuptial Agreement questionnaire also allows you to choose if you and your spouse wish to have separate lawyers present and review your agreement when signing.

Does a Postnuptial Agreement need to be notarized?

Requirements for notarizing or witnessing a Postnuptial Agreement may vary by jurisdiction. However, notarizing can help further validate your signatures if you ever need it for legal purposes, such as separation or divorce.

Most states’ Unified Electronic Transaction Act (UETA) recognizes the validity of electronic signatures on certain documents. Remote notarization is possible due to the recognition of electronic signatures and online notary laws. Additionally, the Full Faith and Credit Clause of the US Constitution allows notarizations performed in one state to be legal in any other state.

LawDepot offers Online Notary (NOTARY) services for Postnuptial Agreements so you and your spouse can easily notarize your document from home (available in all states except Alabama, Maryland, Massachusetts, Mississippi, Puerto Rico, South Carolina, and Vermont).

How long after marriage can I get a postnuptial agreement?

You can create a Postnuptial Agreement at any point after you’re legally married—whether that’s shortly after the wedding or many years later.

The key limitation is timing: once you and your spouse have decided to separate or file for divorce, it’s usually too late, since postnups are designed for couples who intend to stay married.

Additionally, some state laws subject family law agreements to additional formalities. Spouses should confirm their state's signing requirements or get legal advice prior to e-signing or notarizing.

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Postnuptial Agreement

Create Your Free Postnuptial Agreement

Postnuptial Agreement

Create your Postnuptial Agreement

Create your Postnuptial Agreement

Your Postnuptial Agreement

What is a Postnuptial Agreement?

Postnuptial Agreement vs. Prenuptial Agreement

Postnuptial Agreement vs. divorce

Purposes of a Postnuptial Agreement

How does a Postnuptial Agreement work?

Key aspects of Postnuptial Agreements

Common reasons for using a Postnuptial Agreement

Issues Covered by Postnuptial Agreements

Enforceability of Postnuptial Agreements

How to write a Postnuptial Agreement

1. Party information

2. List of assets

3. Division of shared assets

4. List of debts

5. Division of shared debts

6. Information for dependent children

7. Spousal support terms

8. Terms of the surviving spouse's inheritance

9. Additional clauses

Postnuptial Agreement FAQ

Can I include a pet in a Postnuptial Agreement?

Is a Postnuptial Agreement legally binding?

Are waivers of spousal support enforceable in a Postnuptial Agreement?

Do I need a lawyer for a Postnuptial Agreement?

Does a Postnuptial Agreement need to be notarized?

How long after marriage can I get a postnuptial agreement?

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