Legal Templates

Postnuptial Agreement Template

A postnuptial agreement, or postnup, is a document that a married couple creates to explain how they will split up their debts and assets if their marriage ends. It can also include terms for spousal support if they break up. Couples use a postnup to get clear on their finances and make divorce easier if it ever happens. Here’s what you need to know before using our postnuptial agreement template.

Updated December 11, 2024
Written by Sara Hostelley | Reviewed by Brooke Davis

Table of Contents

What Is the Purpose of a Postnup?

A postnup, or post-marriage agreement, helps couples clarify their financial arrangements after tying the knot. A postnup offers a second chance for couples who didn’t establish a prenuptial agreement before marriage. This document promotes transparency and encourages open discussions about finances.

When Do You Need a Postnup?

Spouses typically create a postnup when their circumstances change during the marriage. For example, if a couple decides to have children, one parent might stay home to care for them. In this case, the stay-at-home parent could become financially vulnerable without a postnup. A postnup can help protect both spouses by outlining financial support or asset division in case the marriage ends.

Some other life changes during a marriage that a postnup can help navigate include:

  • buying property
  • starting a business
  • changing jobs and earning a different amount of income
  • taking on debt
  • receiving an inheritance

In these situations, a postnup helps by clearly stating how money and property will be divided before problems arise. This planning can lower conflict if a divorce occurs and ensure that financial matters are handled as agreed. Creating a postnup lets couples protect their finances and avoid extra stress if their marriage ends.

State-Specific Postnuptial Agreements

Each state has unique laws and requirements for drafting and enforcing these agreements. Explore the state-specific information below to ensure your agreement meets all local legal standards.

Do I Need a Lawyer to Write a Postnup?

While you can draft the agreement yourself, you may consider getting a lawyer to review it to ensure it’s fully compliant with the law. A postnup is a complex legal document with strict requirements, but a lawyer can ensure your postnup is enforceable and accurately reflects your and your spouse’s preferences.

Do Postnups Hold Up in Court?

Postnups can hold up in court, but they’re often subject to great scrutiny by the courts. The courts will study your postnup closely to ensure it’s fair for both parties and wasn’t created under stress or force.

The exact postnup requirements may differ depending on where you live, but the following are general validity requirements:

  • written contract (not verbal)
  • voluntary agreement by both parties
  • full and fair disclosure of financial information by both parties
  • just terms that consider both parties’ needs
  • signatures from both parties

Create a Strong Postnup

Work with your spouse and a family law attorney to create a legally enforceable postnup.

Postnuptial Agreement vs. Divorce Agreement

A postnup is a document created by couples during their marriage. It details changes in circumstances, helps couples clarify their financial arrangements, and provides financial protection during the marriage and potentially afterward.

On the other hand, a divorce agreement is part of the final divorce decree that officially ends the marriage. It covers all the important issues, like how the couple will divide their debts, assets, spousal support, and other matters, once the divorce is complete.

These documents differ in four major ways:

  1. Timing: A couple creates a postnup while married, but they create a divorce agreement when they plan to get divorced.
  2. Purpose: A postnup sets financial protections during the marriage, while a divorce agreement finalizes the division of assets and other matters once the couple is divorcing.
  3. Enforceability: A divorce agreement is legally binding once approved by the court, while a postnup is enforceable but may need court approval.
  4. Provisions: A divorce agreement includes more provisions, such as child support and custody arrangements, that are not allowed in a postnup.

Do I Need a Divorce Agreement if I Already Have a Postnup?

Couples who have a postnup will still need to write a divorce agreement if they get divorced.

What About a Postnup vs. Separation Agreement?

A postnup is created after marriage to outline financial terms and responsibilities during the marriage or in case of divorce. Meanwhile, a separation agreement is typically used when a couple decides to live apart without divorcing. It addresses issues like property division, support, and custody during the separation period.

What to Do Before Completing a Post-Marriage Agreement

Before you and your spouse complete a post-marriage agreement, you can collect some information to make the process easier. First, gather the parties’ names and the date, city, and state of marriage. Then, provide the parties’ shared address.

You will also need to specify if the parties have children together or whether either one has children from a previous marriage.

Finally, ensure that each party provides a full and fair financial disclosure. Each party must provide their net worth, income, assets, holdings, liabilities, and debts. This information ensures that each party is aware of the other’s situation, which encourages the creation of an equitable postnup.

What to Include in a Postnup

Now that you and your spouse have shared the basic information, you can start working on the main parts of your postnup. This is where you decide how to handle your money, property, and debts during your marriage and if it ever ends.

  • Property Ownership: Specify the treatment of property owned before marriage and property acquired after marriage.
  • Division of Marital Property: Decide how to divide marital property if the marriage ends.
  • Business Ownership: Clarify the division of businesses owned before marriage and businesses acquired during the marriage.
  • Debts: Specify the treatment of debt owed before the marriage and debt acquired during the marriage.
  • Division of Marital Debt: Decide how to divide debts if the marriage ends.
  • Taxes: State whether you and your spouse will file your tax returns jointly or separately.
  • Housing Arrangements: Declare the division of the marital home if you separate from your spouse.
  • Pets: Describe provisions for pets acquired during the marriage, such as which party will take ownership or have visitation rights if the marriage ends.
  • Spousal Support: Decide whether the parties will waive spousal support or if one will be responsible for paying it.
  • Disability: Clarify if one party will support the other if the other becomes disabled.
  • Death: Explain what happens to the marital property and the deceased person’s property if one spouse passes away.

What Can’t Be Included in a Postnup?

A postnup can’t include terms about child custody or child support because a court will always decide these matters by considering the child’s best interests. While a postnup can address financial matters between the spouses, it cannot make decisions regarding parenting arrangements.

If the parents are planning to divorce, they can create a separate parenting plan that outlines custody and support arrangements. This parenting plan must be submitted to the court for approval as part of the divorce process. The court will review the plan to ensure it aligns with what is best for the child.

In addition to child custody and support guidelines, a postnup cannot include terms that:

  • encourage legal activity
  • go against public policy
  • encourage or incentivize divorce
  • favor one side over the other
  • include waivers of alimony if the couple’s state disallows them

These limits help ensure the postnup is valid and fair.

Pros and Cons of Postnups

Like many things in life, postnups come with both advantages and disadvantages. Some people might view a postnup as a bad sign, thinking it’s a sure way to lead to divorce. But it can actually be the opposite. A postnup helps couples secure their finances during marriage. If a divorce does happen later due to other challenges, having a postnup can be a helpful safeguard.

Explore some other pros and cons of a postnup.

Pros

  • Couples have more time and life experience on their side when they create a postnup.
  • Postnups account for changes in assets and income.
  • Postnups can protect children from previous relationships.

Cons

  • Both parties may not agree on the terms.
  • The wealthier party may have an advantage in negotiations.
  • Postnups can be subject to careful inspection by courts.

The pros often overshadow the cons, especially if you work with a lawyer to ensure your postnup is clear, fair, and legally sound.

LegalTemplates provides the most up-to-date information on postnups, but we can’t help you with your specific situation. Your best bet is to hire a family law attorney specializing in marriage matters. They can assist you with writing a comprehensive postnup that complies with your state’s laws and reflects both parties’ interests.

You may also speak with an estate planning attorney, as they can be helpful if you have a complex financial arrangement or significant assets.

How LegalTemplates Helps

Even though we don’t offer legal advice, we provide an easy-to-use, step-by-step document builder for postnup creation. Our attorneys worked diligently to create a comprehensive template for your use.

Simply enter the document builder and input the information unique to your and your spouse’s situation. Our builder writes your postnuptial agreement for you and lets you save it to your computer or print it when done. At this point, you can let your attorney review it and make adjustments if needed.

Frequently Asked Questions

What is an infidelity clause in a postnup?

An infidelity clause in a postnup is a rule that sets consequences if one spouse is unfaithful, like paying a penalty or giving up certain assets.

What is a sunset clause in a postnup?

A sunset clause in a postnup is a rule that ends the agreement after a certain time unless the couple renews it.

Is it too late for a postnup?

It’s never too late for a postnup as long as you’re still married. You can create one anytime during the marriage to clarify finances and protect both spouses.

Does every state recognize postnups?

Some states don’t explicitly mention postnups in their laws. Instead, they rely on case law to govern these agreements.

For example, Ohio didn’t recognize postnups in its state laws until March 2023 with the passage of Senate Bill 210.

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Postnuptial Agreement Template

The document above is a sample. Please note that the language you see here may change depending on your answers to the document questionnaire.

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