Postnuptial Agreement Template

A postnuptial agreement (or a “postnup”) is a legal contract written 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 this contract’s timing, it’s 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.

Table of Contents

• What Is a Postnuptial Agreement?
• Prenup vs. Postnup
• Postnup vs. Separation Agreement
• When Should I Use a Postnuptial Agreement?
• How to Write a Postnuptial Agreement
• Postnuptial Agreement Template
• 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.

Prenup vs. Postnup

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 is bringing 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.

Postnup vs. Separation Agreement

A separation agreement is a document with the same general functions as a postnuptial agreement but with a different intent. Spouses use separation agreements when they want to live apart but remain legally married for specific healthcare or tax benefits. They may have the intention of having a divorce later on.

Postnuptial agreements are not meant to prepare for an inevitable divorce. Instead, they act as a safety precaution in case the marriage becomes strained.

When Should I Use a Postnuptial Agreement?

A prenuptial agreement may not seem ideal until after you get married, in which case it’s no longer possible to create. Changes in the financial situation of a married couple, 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 simplify the legal process of getting a divorce by dividing the assets beforehand, assuming that both spouses can agree without needing separate divorce attorneys.

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 if a marriage ends. These things may not be apparent until well into the marriage.

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 property 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. There are several options 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 in the event the marriage ends.

Disability and Death

Include information about whether one party will support the other if they become disabled. 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 (depending on the claims asserted, the amount at issue, and where the parties reside) court processes 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 a legally enforceable document.

How to Make Your Postnup Valid

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

• It needs to be in writing, as oral contracts are difficult to enforce.
• It needs to be signed and notarized.
• It needs to be fair and reasonable, offering protection to both parties.
• Both spouses have to fully disclose their assets, as hidden assets may nullify the agreement.
• Both parties need to agree to all the terms in the postnup.

Postnuptial Agreement Template

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

Frequently Asked Questions