What Is a Tennessee Postnuptial Agreement?
A Tennessee postnuptial agreement provides clarity and protection for a married couple’s financial affairs and property rights. It comes into effect when they divorce or one spouse dies. A postnup is written after a couple has already wed, while a prenuptial agreement is written before a couple marries.
Couples may choose to pursue a postnuptial agreement for several reasons:
- to create legal safeguards for separate property, such as a family inheritance
- to establish property and asset distribution in the event of divorce or if one spouse dies
- to provide for the care of children from a previous relationship
- to avoid costly litigation
- to preserve a marriage by outlining the potential consequences of divorce
The enforceability of postnups in Tennessee is governed by case law precedent (Bratton v. Bratton (2004)). They undergo additional scrutiny by the courts to ensure both spouses entered into the agreement willingly. Postnuptial agreements are valid under state law when they are:
- in writing
- signed by both parties and notarized
- fair and equal to the parties involved
- written with full disclosure of both spouses’ assets and debts
- written using specific language that leaves no room for uncertainty
Without a postnup, Tennessee courts revert to the state’s equitable distribution laws. These laws divide property and debts based on what the courts deem fair and equitable. During a divorce settlement agreement, a judge accounts for both parties’ incomes, whether one stayed home to care for children, and the length of the marriage (TN Code § 36-4-121). Settlements are not always 50/50.
A postnup supersedes state statute regarding the division of property and spousal support, so you and your partner can decide how property will be allocated and how support will be paid.
How to Write a Postnuptial Agreement in Tennessee
You must include several key components in your postnup to ensure it’s enforceable. Our Tennessee postnuptial agreement template guides you through the steps for writing your own.
- Fill in identifying information: List the spouses’ names and their address. Name any children from a previous relationship or the current union.
- Guarantee full disclosure: Confirm that both spouses have disclosed property they owned prior to the marriage and that they acquired during it.
- Protect business ownership: Assign ownership of any businesses.
- Disclose debts: Both parties must account for debts they brought into the marriage or have accumulated since. Determine who will be responsible for the debt.
- Plan for taxes: Decide whether you will file taxes together.
- Divide the marital home: If one spouse will remain in the marital home, record their possession rights. If you sell the property, outline how the proceeds will be divided. You may also include information on the division of household expenses during the marriage.
- Account for pets: A pet custody agreement specifies which spouse will care for the pets.
- Set spousal support: TN Code § 36-5-121 outlines default payment procedures for spousal support. A postnup can override whether a spouse will receive alimony and the amount awarded. Parties can also mutually agree to waive spousal support. The terms must be reasonable.
- Include additional clauses: Legal Templates’ document builder lets you create your own clauses. You can add details about caring for a disabled spouse or how assets will be divided among surviving children if one spouse dies.
- Consider dispute resolution: Include how disputes will be resolved.
- Sign and notarize: Tennessee requires both parties to sign a postnup. Although state courts don’t mandate notary acknowledgments, it’s a good idea to have the signatures witnessed by a notary to prevent future challenges.
Sample Tennessee Postnuptial Agreement
View a free Tennessee postnuptial agreement to learn how to structure yours. Then, use our document builder to create your own. Download the final version in PDF or Word format.
Legal Requirements and Considerations for Tennessee Postnups
Title 36 of the Tennessee Code features the relevant statutes that apply to postnups. A spouse can challenge this document if it doesn’t follow the state’s requirements.
Signing Requirements
Both spouses must sign a postnup. While state law doesn’t outline this requirement, it’s emphasized in case law (Bratton v. Bratton (2004)).
Legal Representation
The state doesn’t require you to hire a postnuptial agreement lawyer in Tennessee. However, having independent counsel review the document before signing protects your interests and ensures that the terms are fair in case of a future challenge.
Excluded Terms
Postnuptial agreements in Tennessee can’t govern issues of child custody or support. Instead, the state’s family court system handles these issues. Postnups also can’t prevent a spouse from filing for divorce.
Inheritance Rights
If one party stands to receive an inheritance, having a postnup can protect your nest egg. Default inheritance rights delegate inherited property to a surviving spouse and children first (TN Code § 31-2-104 (2024)). With a postnup, you can specify what happens to your property if your spouse survives you. You should also consider having a will or other estate planning document along with your postnup to ensure your wishes are respected.
Validity Requirements
The Tennessee Supreme Court applies a high level of scrutiny to postnups to ensure their terms are fair and equitable to both parties (Bratton v. Bratton, 2004). Postnups follow the state’s regular rules for contracts. This means the court has to make sure both spouses agreed to the postnup willingly, without fraud or coercion. The court might look more closely at the agreement if the couple made it after separating or considering divorce.
