Postnuptial Agreement Template

A postnuptial agreement (or “postnup”) is a legal contract created after a couple gets married that outlines each partner’s financial rights and responsibilities in case the marriage ends in divorce, annulment, separation, or death. Aside from its timing, this contract is similar to a prenup.

Both partners must have enough time to consider the agreement and sign it voluntarily to be valid. Without a postnuptial agreement, your state’s default laws on divorce or inheritance will apply to you and your partner.

Postnuptial Agreements – By State

Table of Contents

• Postnuptial Agreements – By State
• What Is a Postnuptial Agreement?
• Why Get a Postnuptial Agreement
• Postnuptial Agreement vs. Prenuptial Agreement
• Postnup vs. Divorce Agreement
• How to Write a Postnuptial Agreement
• Postnuptial Agreement Sample
• Frequently Asked Questions

What Is a Postnuptial Agreement?

A postnuptial agreement determines the division of assets between you and your spouse should your marriage end. With a postnuptial agreement, you can make these legal decisions after marriage. This document also covers related elements such as debt, alimony, spousal support, or budget plans for retirement.

Requirements to Be Valid

It’s essential to check the laws of your state because each state may have specific requirements for postnuptial agreements. In general, several criteria make a postnuptial agreement valid:

• Be in writing, as oral contracts are difficult to enforce.
• Be signed by both parties and notarized by a notary public.
• Be fair and reasonable, offering protection to both parties.

Furthermore, both spouses must fully disclose their assets, as hidden assets may nullify the agreement. Both parties must also agree on all the terms in the postnup.

Why Get a Postnuptial Agreement

Some couples don’t realize the consequences of not having a prenup until after marriage. By the time a couple marries, it’s too late to get a prenup. However, a postnup is still a viable option, and it can offer the following benefits:

• Clarifies Financial Expectations: A postnup establishes clear guidelines for handling assets, debts, and finances during and after marriage, which can minimize potential conflicts.
• Protects Individual Assets: A postnup ensures that the assets each spouse has before they get married remain separate property. This separation prevents individuals’ assets from being divided in the event of divorce.
• Provides Peace of Mind: By dictating how to treat future income and debts in their postnup, both parties can receive peace of mind.
• Protects Business Interests: A postnup can preserve a business’s value by preventing its division or sale in the event of divorce.
• Simplify Divorce Proceedings: If divorce is ever on the table, having a postnup can reduce the stress and costs of a divorce, as it allows couples to decide on debt allocation, spousal support, and property division in advance.
• Adapts to Changing Circumstances: Even if you already have a prenup, a postnup lets you and your spouse adjust your financial arrangement if you experience a major life change.
• Protects Heirs from a Former Marriage: If one spouse has children from a previous marriage, a postnup can ensure that specific assets or inheritance rights remain with those children.

Postnuptial Agreement vs. Prenuptial Agreement

Both agreements address the division of assets after marital separation, but postnuptial agreements are drawn up after the marriage instead of a contract agreed upon beforehand.

A couple may consider getting a prenup if one partner brings more assets or debt into the marriage than the other. A couple may consider getting a postnup if they didn’t consider it before they got married and now deem it a good idea.

Here is a table summarizing the differences between postnuptial and prenuptial agreements:

Postnup vs. Divorce Agreement

Here are the key differences between a postnup and a divorce agreement:

• Timing:
  • Postnup: A couple signs a postnup while they’re still married and planning to stay together.
  • Divorce Agreement: A couple signs a divorce agreement during divorce proceedings.
• Purpose:
  • Postnup: A postnup helps a couple manage financial affairs during their marriage and prepare for possible future events, such as death or divorce.
  • Divorce Agreement: A divorce agreement facilitates the end of the marriage and settles all the parties’ legal and financial obligations.
• Legal Standing:
  • Postnup: This document provides terms for future events like divorce, separation, or death but doesn’t dissolve the marriage.
  • Divorce Agreement: This document legally terminates the marriage and is enforceable as a final settlement.
• Scope of Issues:
  • Postnup: It can cover various marital issues, including financial planning, debt responsibility, and property division.
  • Divorce Agreement: It focuses on finalizing all matters such as child custody, alimony, property division, and debt allocation as part of the legal divorce process.
• Enforceability:
  • Postnup: It’s enforceable in court, but a judge may scrutinize it more heavily, especially if one party later claims they signed it under coercion.
  • Divorce Agreement: It’s binding and enforceable once a court approves it as part of the divorce decree.
• Flexibility:
  • Postnup: The parties can modify it during the marriage if both parties agree to new terms.
  • Divorce Agreement: Once the parties finalize it and receive court approval, it’s difficult to modify it. However, significant changes in circumstances may justify amendments or modifications.
• Focus on Reconciliation:
  • Postnup: It often aims to stabilize a marriage by addressing financial concerns or other potential conflicts proactively.
  • Divorce Agreement: It finalizes the legal end of the marriage and focuses on divorce, not reconciliation.

How to Write a Postnuptial Agreement

Here’s a list of steps on how to write a postnuptial agreement:

Step 1 – Include Party Information

When writing a postnuptial agreement, you must provide the following information about both parties:

• The first party’s name
• The second party’s name
• Marriage date
• The city and state where you were married
• Your joint address
• Information about existing children
  • Include the number of children and mention whether either party has children from a previous relationship
• Acknowledgment of full financial disclosure
  • If this is not present, the agreement may not be deemed valid in court
  • Make sure to attach the financial disclosures of each party to the document as exhibits

What financial information should I include in the agreement?

Each spouse should attach their information regarding their net worth, assets, income, holdings, liabilities, and debts. The law requires “full and fair disclosure” to enforce a postnup, so each person must fully disclose their financial affairs and include all relevant information.

Step 2 – Provide Property Information

This section is split into three subsections:

Property Owned Before Marriage

You can designate all prior properties as separate, shared, or a mix of both. For anything acquired before marriage, you can decide that:

• Property acquired before the marriage is separate property.
• Property acquired before the marriage is separate property, with some exceptions.
  • Make sure you specify the exceptions in the document.
• Property acquired before the marriage is joint property.

Marital property is any asset owned by both partners or property obtained during the marriage. In contrast, non-marital property is a property you don’t want to share with your partner. Non-marital property is also known as “separate” property.

You can specify in the agreement for all or any property that you do not want to be considered marital property so that only one person will have ownership/liability. In the case of divorce, non-marital property is not subject to division and remains the sole property of the individual.

Property Acquired During The Marriage

Once you’re married, you can similarly decide that:

• Property acquired during the marriage is separate property.
  • Anything that either party acquired during the marriage will continue to belong to that person.
• Property acquired during the marriage is separate property, with some exceptions.
  • Anything either party acquired during the marriage can be designated marital property.
  • Make sure you specify the exceptions in the document.
• Property acquired during the marriage is joint property.
  • Anything acquired during the marriage by one partner equally belongs to the other partner.

Division of Marital Property

In the event of a divorce, you must specify how the marital property will be divided:

• By your state’s laws
  • If you cannot agree on dividing property, a judge will decide for you. Usually, the property will be divided equitably or fairly based on various factors if you did not specify how the property will be split.
• By percentage
  • Specify each party’s percentage of the marital property.

Step 3 – Include Business Information

This section is split into two subsections:

Business Owned Before Marriage

If you or your spouse owns a business that existed before the marriage, you need to clarify how any increases in the value of the business will be divided:

• Increases in value will be granted to the owner of the business.
• Increases in value will be shared equally between both parties.
• Increases in value will be divided by a percentage.
  • Specify the percentage of each party in the agreement.

Business Acquired During Marriage

If you or your spouse owns a business that was created during the marriage, you need to clarify how the company will be divided:

• Granted to you
• Granted to your spouse
• Shared equally
• Divided by percentage
  • Specify the percentage of each party in the agreement.

If either of you starts or inherits a business during marriage, you can choose whether to share any future increase in the value of the business. An inherited business would be classified as separate property unless marital funds are used to support the business financially. However, a business started during the marriage would be classified as marital property.

You should also specify if the business’s financial accounts will be excluded as marital property or not.

Step 4 – Provide Debts and Taxes Information

This section is split into four subsections:

Debt Owed Before Marriage

It would be best if you clarified how debt owned by either you or your spouse will be treated:

• As each party’s separate debt
• As each party’s separate debt, with some exceptions
• All as both party’s joint, marital debt

Suppose you have any outstanding loans or financial obligations before getting married. You and your partner can decide whether these debts will remain only one person’s responsibility or whether both of you are responsible for repaying debts after marriage.

Debt Acquired During Marriage

This is similar to the previous section; you will have the same options.

Division of Marital Debt

In the event of a divorce, you must specify how marital debt will be divided:

• In accordance with your state’s laws
• By percentage
  • Specify each party’s percentage of the marital debt.

Taxes During Marriage

Here, you specify whether you want to file tax returns separately or jointly as a married couple.

Step 5 – Specify How You’ll Divide The Marital Home

You and your spouse share the marital home during your marriage. In this section, you must decide how the house will be divided. Several options are available to you:

• State whether the home is owned by either party or rented
• Owned
  • State who owns the marital home or whether both parties jointly own it.
  • Specify who will be responsible for mortgage payments, taxes, and other maintenance expenses. Alternatively, you can decide both parties will be responsible.
  • If the home is going to be divided, determine who will own the property in a divorce.
    • If you decide both parties will share the property, state if one party is entitled to stay in the home and for how long.
• Rented
  • State which party will be responsible for lease payments, rental insurance premiums, and other maintenance expenses. Alternatively, you can decide both parties will be responsible.
  • Specify if one party will be entitled to remain in the marital home if the marriage ends.

Division of Household Expenses

Specify how you will share the household expenses during the marriage:

• Paid entirely by the first party
• Paid entirely by the second party
• Paid equally by both parties
• Each party will pay specific expenses

Step 6 – Include Pet Information

If you or your spouse has a pet you acquired during the marriage, you should clarify who will own the pet if the marriage ends. You can also state the visitation rights and schedule for the other party (e.g., monthly visits).

Step 7 – Add in the Final Details

Ensure to add the following final details to your postnup:

Waiver of Rights

State if both parties waive their right to spousal support if the marriage ends.

Disability and Death

Include information about whether one party will support the other if they become disabled. You can also specify property inheritance rights if one party passes away.

Additional Clauses

Include any additional clauses here, such as having a sunset clause that terminates the postnuptial agreement after a certain amount of time has passed (e.g., five years) or an event has occurred (e.g., birth of a child).

Dispute Resolution

Decide how parties will resolve disputes:

• Court litigation: Litigation refers to state or federal court processes (depending on the claims asserted, the amount at issue, and where the parties reside) to resolve a dispute according to the rules in that jurisdiction.
• Arbitration: If the spouses cannot agree on a resolution, the mediator becomes an arbitrator. The spouses present their evidence and make their arguments to the arbitrator, and they then make a legally binding decision on the parties.
• Mediation: A process by which the spouses try to mediate their dispute with a neutral person, the mediator

Date and Governance

State the date and which state’s laws will be used to interpret this agreement.

Step 8 – Notarize the Document

Finally, notarize the agreement before a notary public to make your postnup legally enforceable.

Postnuptial Agreement Sample

Review our postnuptial agreement template to ensure your postnup is valid and protects your assets effectively. Download it as a PDF or Word file:

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Frequently Asked Questions