Use a postnuptial agreement template to determine how to divide your assets between you and your spouse should your marriage ends. With a postnuptial agreement, you can make these legal decisions after you’re already married.
What is a Postnuptial Agreement?
A postnuptial agreement, or postnup, is a contract that states how assets between spouses will be divided and handled should the marriage or civil union end. This can also include related conditions such as debt, alimony, spousal support, or budget plans for retirement.
Postnuptial agreements are very similar to other post-marital agreements, but they’re mainly used to legally and fairly protect assets after a divorce, death, or separation.
State Differences
You might find it hard to get a postnuptial agreement enforced in some states, as they come with limitations of what can be included. For example, most states prohibit postnuptial agreements from including provisions related to child support or custody. Also, any matter regarding inheritance or alimony must also adhere to state laws.
In states like Utah and California, marriage comes with stricter marital obligations for spouses. A judge may not approve the postnup if the agreement was signed unfairly, has any uncertainty, or includes anything that violates state marital laws.
In general, you should have a family law attorney for your state look over your completed postnuptial agreement form.
Prenuptial Agreement vs Postnuptial Agreement
Postnuptial agreements are used the same way as prenuptial agreements, although prenups are more common. Both agreements address division of assets after marital separation, but postnuptial agreements are drawn up after the marriage as opposed to a contract agreed upon beforehand.
In addition, prenups must be negotiated using separate lawyers (if attorneys are used), while there is no such restriction for postnups. In general, both agreements must abide by state laws when it comes to what they can include.
What is a Separation Agreement?
A separation agreement is a document with the same general functions as a postnuptial agreement, but with different intent. Spouses use separation agreements when they want to live apart but remain legally married, with the intention of having a divorce later on.
Postnuptial agreements are usually not meant as preparation for inevitable divorce, but a legal separation agreement can be used for that purpose. This is usually done to retain certain healthcare or tax benefits without the need to live together.
Legally, a separation agreement can address any matter that is part of divorce proceedings, with none of the restrictions that come with a postnuptial agreement.
When Should I Use a Postnuptial Agreement?
Using a postnuptial agreement may not seem ideal until after marriage, in which case a prenuptial agreement is no longer valid. Changes in the financial situation of a marriage, such as one person receiving an inheritance or taking on debt, may necessitate using a postnuptial agreement to protect one or both spouses.
A postnup may also be used to simplify the legal process of getting a divorce by dividing the assets beforehand, assuming that both spouses can come to an agreement without the need for separate divorce attorneys.
In certain niche cases, such as inheritance for children from another marriage or income generated from a business solely owned by one spouse, are also conditions to consider and protect in the event that a marriage ends. These things may not be clear until well into the marriage.
The very idea of a prenuptial agreement may seem unattractive for many couples, but the practicality of one may not be appealing until it’s too late. In many cases, this is the biggest value of a postnuptial agreement. If nothing else, the postnup will provide the same protections for you or your spouse’s assets as a prenuptial agreement.
How to Write a Postnuptial Agreement
For a judge to deem a postnuptial agreement valid, it needs to have content that adheres to state laws and show that the contract was signed without deception, with all assets and debts disclosed. It must also be clear that both spouses had legal representation and understanding of the clauses.
Even with both spouses represented by attorneys, make sure you read the agreement carefully before the document is signed and validated by a court of law.
How to Make Your Postnup Valid
It’s important to check the laws of your state because each state may have specific requirements for postnuptial agreements. In general, there are a number of criteria that a postnuptial agreement needs to follow:
1. It needs to be in writing
An oral contract is often difficult to enforce legally in any case. For a postnuptial agreement to hold weight in court, it needs to be a written document that both parties have had ample time to review.
2. It needs to be signed and notarized
For the document to be legally enforceable, it needs to be signed by both parties and notarized to prove that the signatures are valid.
3. It needs to be fair and reasonable
Postnuptial agreements are usually entered into because one spouse earns or owns considerably less than the other. The agreement needs to protect both parties.
4. There must be full disclosure of assets by both spouses
It’s important that all assets are known by both parties prior to signing the postnuptial agreement. If, for example, one spouse has hidden assets, it can nullify the entire agreement.
5. Both parties agree to the terms of the postnuptial agreement
If either party is coerced, forced, or deceived into signing the document, it’s not enforceable. It’s important that both parties fully understand the document prior to signing.
Free Postnuptial Agreement Form
Use a postnuptial agreement template to ensure that your postnup is valid and effectively protects your assets.
This Postnuptial Agreement (this “Agreement”) is entered into on ______ day of _______________, 20______, by and between: First Party: ________________________ (the “First Party”) and Second Party: ________________________ (the “Second Party”) both currently residing at ________________________________________ [Address]. First Party and Second Party may be referred to individually as a “Party” and collectively as the “Parties.” WHEREAS, the Parties were married on __________________________ [Date] in _________________ [City], ____________________ [State]; and WHEREAS, the Parties are currently married and living together and anticipate continuing to be married and living together; and WHEREAS, the Parties currently have __________ child(ren) together; and WHEREAS, the First Party has __________ child(ren) from a previous relationship; and WHEREAS, the Second Party has __________ child(ren) from a previous relationship; and WHEREAS, the Parties wish to provide for their rights and obligations with respect to their own and each other’s assets and property, including the property of each Party separately owned before the marriage and the property the Parties have or will acquire separately during the marriage, in the event the marriage is terminated; and WHEREAS, each Party has made full, fair and reasonable disclosure to the other Party of his or her financial information regarding net worth, assets, income, holdings, liabilities and debts as set forth in Exhibits A and B to this Agreement. The First Party’s financial information and property are set forth in Exhibit A to this Agreement. The Second Party’s financial information and property are set forth in Exhibit B to this Agreement; and WHEREAS, each Party acknowledges receipt, review and understanding of the other Party’s financial information prior to signing this Agreement; and WHEREAS, the Parties represent that they have had the opportunity to separately consult with legal counsel, however chose not to engage legal counsel in the drafting and negotiation of this Agreement. NOW THEREFORE, the parties freely and fully accept the provisions, terms and conditions hereof and in consideration of the promises and mutual covenants herein contained as well as for other good and valuable considerations not herein specifically set forth, the parties do hereby agree to the following: ☐ Joint property. With respect to property acquired prior to the marriage, each Party’s property listed in Exhibit A and Exhibit B that is separately owned prior to the marriage will be considered the marital property of both Parties. ☐ Separate property. With respect to property acquired prior to the marriage, each Party’s property listed in Exhibit A and Exhibit B will remain as the respective Party’s non-marital, separate property during and after the marriage, including any increase in the value relating to the property, exception for the following property will be considered the marital property of both Parties: __________________________ ___________________________________________________________________________ (Optional). Each Party will have the full right and authority to manage, sell, gift, transfer or otherwise dispose of his or her separate property. ☐ Joint property. With respect to property acquired during the marriage, all assets, real property, and personal property earned, acquired and given to either Party individually during the marriage and earned and acquired by both Parties through their joint efforts or given to both Parties will be treated as marital property and owned by both Parties equally or as otherwise designated in a writing signed by both Parties. ☐ Separate property. With respect to property acquired during the marriage, any property earned, acquired and given to either Party individually during marriage will be treated as such Party’s non-marital, separate and individual property, including any increase in the value relating to the property, except for the following property will be considered the marital property of both Parties: _______________________ ___________________________________________________________________________ (Optional). Each Party will have the full right and authority to manage, sell, gift, transfer or otherwise dispose of his or her separate property. All assets and property that are earned and acquired by both Parties through their joint efforts or given to both Parties will be treated as marital property and owned equally by the Parties or as otherwise designated in a writing signed by both Parties. ☐ Shall be divided between the Parties with the First Party receiving __________% of the marital property and the Second Party receiving __________% of the marital property. ☐ Is subject to division as determined by the jurisdiction whose law governs the construction of this Agreement. ☐ Granted to the First Party ☐ Granted to the Second Party ☐ Shared equally by the Parties ☐ Divided between the Parties as follows: __________% to the First Party and __________% to the Second Party or as otherwise designated in a writing signed by both Parties. Ownership of business prior to marriage (Check one) ☐ Not applicable. ☐ With respect to ownership of business, any business that is separately owned prior to the marriage will remain as that Party’s non-marital, separate and individual property and will not be subject to division in the event the marriage is terminated. Any appreciation in the value of the business during the course of the marriage will be: (Check one) ☐ Granted to the Party that owns the business ☐ Shared equally by the Parties ☐ Divided between the Parties as follows: __________% to the First Party and __________% to the Second Party or as otherwise designated in a writing signed by both Parties. Spousal support (Check one) ☐ In the event the marriage is terminated by reason of annulment, divorce or separation, both Parties waive and release any claims that he or she may have against the other for spousal support or alimony. Notwithstanding, if the waiver of spousal support causes either Party to become eligible for support under a program of public assistance at the time of the divorce or separation, then the waiver of support will be unenforceable and a court, on request of that Party, may require the other Party to provide support consistent with state law and to the extent necessary to avoid that eligibility. ☐ Not applicable. ☐ Joint debt. With respect to debts incurred prior to the marriage, each Party’s existing debts or obligations listed in Exhibit A and Exhibit B that is the sole responsibility of either Party prior to the marriage will be considered the marital debt of both Parties. ☐ Separate debt. With respect to debts incurred prior to the marriage, each Party’s pre-existing debts or obligations listed in Exhibit A and Exhibit B will remain as the respective Party’s sole responsibility during and after the marriage, except for the following debts, which will be considered the marital debt of both Parties: _________________________________________________________________________ ___________________________________________________________________________ (Optional). Except for the debts stated above, any increase in the value of the pre-existing debts or obligations will also remain the sole responsibility of the respective Party. Each Party will indemnify the other Party and be responsible for all related expenses including attorney’s fees if a debt or obligation is asserted as a claim or demand against the other Party’s property. ☐ Joint debt. With respect to any debts or obligations incurred during marriage, all debts or obligations incurred by either Party, individually or jointly, will be treated as marital debt and will be the responsibility of both Parties equally, or as otherwise designated in writing signed by both Parties. ☐ Separate debt. With respect to any debts or obligations incurred during marriage, any debts or obligations incurred by either Party during the marriage will be such Party’s sole responsibility, and the other Party will not assume or become responsible for such debts or obligations without his or her written consent. Each Party will indemnify the other Party and be responsible for all related expenses including attorney’s fees if a debt or obligation is asserted as a claim or demand against the other Party’s property. ☐ Separate debt, with exceptions. With respect to any debts or obligations incurred during marriage, any debts or obligations incurred by either Party during the marriage will be such Party’s sole responsibility, and the other Party will not assume or become responsible for such debts or obligations without his or her written consent, except for the following debts, which will be considered the marital debt of both Parties: _______________________________________________________________________ ___________________________________________________________________________________. Except for the debts stated above, each Party will indemnify the other Party and be responsible for all related expenses including attorney’s fees if a debt or obligation is asserted as a claim or demand against the other Party’s property. All debts and obligations that are incurred by both Parties jointly will be treated as marital debt and will be the obligation of both Parties equally or as otherwise designated in a writing signed by both Parties. ☐ Is subject to division as determined by the jurisdiction whose law governs the construction of this Agreement. ☐ Shall be divided between the Parties with the First Party responsible for __________% of the marital debt and the Second Party responsible for __________% of the marital debt. ☐ Joint federal and state income tax returns, or as otherwise designated in writing. If the Parties jointly file federal and state income tax returns, it shall not create any community property or any other rights or interests unless otherwise intended by the provisions of this Agreement, and each Party will continue to be liable for any and all taxes associated with his or her separate property. Federal gift tax laws and federal estate tax laws impacting the rights of spouses shall continue to apply independent of this Agreement. ☐ Separate federal and state income tax returns, or as otherwise designated in writing. This Agreement does not waive the Parties’ right to report their income for federal or state income tax purposes jointly. If the Parties later elect to jointly file federal and state income tax returns, it shall not create any community property or any other rights or interests unless otherwise intended by the provisions of this Agreement, and each Party will continue to be liable for any and all taxes associated with his or her separate property. Federal gift tax laws and federal estate tax laws impacting the rights of spouses shall continue to apply independent of this Agreement. ☐ Do not specify. ☐ Do not specify. ☐ Parties own the marital home. The Parties’ marital residence located at _______________________ ____________________ is owned by (Check one) ☐ the First Party ☐ the Second Party ☐ both parties, in accordance with the property deed. (Check one) ☐ The First Party ☐ The Second Party ☐ Both Parties will be equally responsible for the mortgage payments, real estate property taxes, and/or other maintenance expenses related to the residence. Division of marital home (Check one) ☐ The residence will remain as the non-marital, separate property of the First Party during and after the marriage. ☐ The residence will remain as the non-marital, separate property of the Second Party during and after the marriage. ☐ The residence will be treated as marital property and owned equally by both Parties. Party to remain in martial home (Check one) ☐ In the event the marriage is terminated, the First Party shall have the right to continue living in the Parties’ marital residence for a period of __________ years after the termination of the marriage. ☐ In the event the marriage is terminated, the Second Party shall have the right to continue living in the Parties’ marital residence for a period of __________ years after the termination of the marriage. ☐ Not applicable. ☐ Parties rent the marital home. The Parties’ marital residence located at ________________________________________. For the lease payments, rental insurance premiums and/or any other maintenance expenses related to the residence, (Check one) ☐ the First Party will be responsible ☐ the Second Party will be responsible ☐ both parties will be equally responsible. Party to remain in martial home (Check one) ☐ In the event the marriage is terminated, the First Party shall have the right to continue living in the Parties’ marital residence. ☐ In the event the marriage is terminated, the Second Party shall have the right to continue living in the Parties’ marital residence. ☐ Not applicable. ____________________________________________________________________________________ The Second Party will be responsible for the payment of the following household expenses from the Second Party’s separate account: ________________________________________________________ ___________________________________________________________________________________ Both Parties will be equally responsible for payment of the following household expenses. The household expenses will be paid from a joint account funded by both Parties. The regular household expenses include: _____________________________________________________________________________ ____________________________________________________________________________________ Pets acquired during marriage (Check one) ☐ Sole custody, NO visitation rights. With respect to any pet that is acquired during the marriage, in the event the marriage is terminated, the custody of any such pet will be: (Check one) ☐ Granted to the First Party without visitation rights, unless otherwise designated in a writing signed by both Parties. ☐ Granted to the Second Party without visitation rights, unless otherwise designated in a writing signed by both Parties. ☐ Sole custody, with visitation rights. With respect to any pet that is acquired during the marriage, in the event the marriage is terminated, the custody of any such pet will be: (Check one) ☐ Granted to the First Party with visitation rights (Check one) ☐ on a monthly basis ☐ on a weekly basis ☐ other: ____________________________, or as otherwise designated in a writing signed by both Parties. ☐ Granted to the Second Party with visitation rights (Check one) ☐ on a monthly basis ☐ on a weekly basis ☐ other: ____________________________, or as otherwise designated in a writing signed by both Parties. ☐ Joint custody. With respect to any pet that is acquired during the marriage, in the event the marriage is terminated, the custody of any such pet will be shared equally by both Parties otherwise designated in a writing signed by both Parties. If custody of a pet is shared (Check one) ☐ the First Party agrees to solely fund ☐ the Second Party agrees to solely fund ☐ both Parties agree to contribute equally to the cost of caring for the pet for the remainder of the pet’s life. ☐ If either Party becomes partially or totally disabled, the caring Party shall be completely responsible for providing necessary care to the disabled Party to the full extent of the caring Party’s capacity and ability. ☐ If either Party becomes partially or totally disabled, the caring Party shall NOT be responsible for providing necessary care to the disabled Party. If one Party survives the death of the other, the surviving Party (Check one) ☐ shall NOT ☐ shall receive the personal property of the decedent Party unless otherwise stipulated in writing or a Last Will and Testament by the decedent party. The surviving Party understands and agrees that any right to the (Check one) ☐ marital home and marital property ☐ marital home ☐ marital property will be governed by the respective property deed unless otherwise stipulated in writing or the Last Will and Testament of the decedent Party. The Last Will and Testament of the decedent or applicable state laws shall control. Both Parties, however, understand and agree that they may name the other Party as a beneficiary in their Last Will and Testament, life insurance policy or retirement plan. Such a transfer, bequest, or designation takes precedence over any provisions of this Agreement. ☐ Court litigation. Disputes shall be resolved in the courts of the State of ______________. (Check if applicable) ☐ If either Party brings legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover from the other Party its expenses (including reasonable attorneys’ fees) incurred in connection with the action and any appeal. ☐ Binding arbitration. Binding arbitration shall be conducted in accordance with the rules of the American Arbitration Association. ☐ Mediation. ☐ Mediation, then binding arbitration. If the dispute cannot be resolved through mediation, then the dispute will be resolved through binding arbitration conducted in accordance with the rules of the American Arbitration Association. ____________________________________________________________________________________ ____________________________________________________________________________________ IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. NOTARY ACKNOWLEDGEMENT State of _________________ ) ) ss: County of _________________ ) The foregoing instrument was acknowledged before me this ______ day of _______________, 20______, by the undersigned, ________________________, who is personally known to me or satisfactorily proven to me to be the person whose name is subscribed to the within instrument. ____________________________________ ____________________________________ My Commission Expires: _______________ State of _________________ ) ) ss: County of _________________ ) The foregoing instrument was acknowledged before me this ______ day of _______________, 20______, by the undersigned, ________________________, who is personally known to me or satisfactorily proven to me to be the person whose name is subscribed to the within instrument. ____________________________________ ____________________________________ My Commission Expires: _______________ Exhibit A FIRST PARTY’S FINANCIAL AND PROPERTY DISCLOSURE Exhibit B SECOND PARTY’S FINANCIAL AND PROPERTY DISCLOSUREPostnuptial Agreement Template
State of ______________
POSTNUPTIAL AGREEMENT
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First Party’s Signature
First Party’s Full Name
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Second Party’s Signature
Second Party’s Full Name
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Notary Public
Signature
Notary Public