How to Write a Postnuptial Agreement

When it comes to relationship planning, many people are familiar with the concept of a prenuptial agreement, but not as many people are aware that postnuptial agreements are also an option.

A prenuptial (“prenup”) agreement is simply an agreement that is entered into by a couple prior to entering into a legal marriage. The pre-marriage agreement outlines how a couple’s assets and debts are to be divided should the couple ever divorce.

Similar to a prenuptial agreement, a postnuptial (“postnup”) agreement is a legal contract that is created by spouses after they have already gotten married. A postnuptial agreement similarly outlines the ownership and division of financial assets in the event that a couple later divorces, or in the event of death.

Postnuptial agreements are very common and are often utilized by married partners as a means for providing reassurances and relationship planning in the future. In fact, many couples note that creating and executing a postnuptial agreement actually strengthens the relationship. It does this by allowing both partners to grow without needlessly worrying about an unexpected division of marital assets or debts.

The following article discusses what postnuptial agreements are, including what may be included in an agreement, the benefits of postnuptial agreements, and the general steps for creating a valid and enforceable postnuptial agreement.

What Is a Postnuptial Agreement?

As noted above, a postnuptial agreement is a legal contract that is created by spouses after they are married. The agreement outlines the ownership and division of assets and debt responsibilities in the event that a divorce or separation occurs. Post nuptial agreements can also address a variety of other issues.

What Topics Can Be Covered in a Postnuptial Agreement?

There are numerous topics that can be covered in a postnuptial agreement through the provisions present in the agreement, including:

• Division of Assets: One of the most common provisions in a postnuptial agreement is provisions that specify how property and assets will be divided in the event of a divorce or legal separation
• Debt Allocation: Another common provision is an outline regarding each partner’s responsibility for existing and future debts
• Spousal Support: There are also commonly provisions regarding alimony or spousal support included in postnuptial agreements, including the amount and duration of such support, if any
• Inheritance Rights: Postnuptial agreements are also commonly utilized as pseudo estate planning tools to clarify the inheritance rights of each spouse, particularly if the spouses have children from previous relationships
• Business Interests: Postnuptial agreements also may address the ownership and division of any business interests or partnerships entered into by the couple, which also offers assurances to other partners or investors that may be involved
• Retirement Benefits: Specifies how retirement accounts and benefits will be divided.
• Child-Related Provisions: Although issues concerning children are always determined by a court in accordance with the child’s best interest standard, some postnuptial agreements may include provisions related to issues regarding child custody, expenses, education, etc.
  • The child’s best interest standard is a legal standard which states that all decisions related to a child must be made in accordance with the child’s interests and backgrounds being placed above the parent’s personal preferences. In other words, all decisions must be made in the child’s best interest
  • It is important to note that a postnuptial agreement generally cannot bind the parties to any agreement concerning child custody or child support, but the court may adopt certain aspects of the agreement into a temporary or permanent child custody or child support order

As can be seen, postnuptial agreements can be tailored to fit the unique needs and specific circumstances of each individual and couple that decides to create such an agreement. Further, the above list is not comprehensive, so if there are other issues that the couple foresees may result in complications down the road, such as pet ownership, then they can also include more specific provisions to address those possible issues.

What Are the Requirements of a Valid Postnuptial Agreement?

Importantly, the laws that govern postnuptial agreements will vary by state. As such, it is important to review your state’s laws on postnuptial agreements and contract formation prior to attempting to enter into any postnuptial agreement.

In general, postnuptial agreements are contracts and must satisfy all of your state’s contract laws in order to be enforceable. As such, most courts will look for the following requirements when deciding whether or not a valid postnuptial agreement has been created and is enforceable:

• Writing Requirement: The postnuptial agreement must generally be made in writing in order to be valid
  • Oral agreements are often not honored in court, and are hard to prove
  • The postnuptial agreement should be signed and dated by both parties, as well as be notarized
• Voluntary Agreement: Both parties must have voluntarily agreed to the contract.
  • This means that consent or signatures cannot be obtained through threats, physical force, or fraud/deceit
  • Additionally, postnuptial agreements may also be void or voidable if one party was not of their right mind when they signed the contract
• Fair Agreement: The agreement must generally be “conscionable,” which means the agreement must be fair and equal between the parties
  • Postnuptial agreements that are completely one-sided are typically not considered to be valid or enforceable by most courts
• Full Disclosure: Finally, the agreement must be reached under conditions of full and accurate disclosure between the parties
  • For example, one party cannot conceal the existence of their assets or debts from the other spouse in order to obtain an advantage in the agreement

What Are Benefits of a Postnuptial Agreement?

There are numerous different benefits of choosing to execute and enter into a postnuptial agreement. Couples that enter into a postnuptial agreement often note that following benefits:

• Asset Protection: One main benefit is that postnuptial agreements serve to clearly define the ownership and division of assets present and in the future
  • This can be particularly useful if one spouse has significantly more assets or debts than the other spouse
• Debt Management: Postnuptial agreements also help to manage and allocate responsibility for debts, which protects each spouse from the other’s financial debts and liabilities
• Clarity and Communication: Agreements encourage open communication and conversations about finances and relationship expectations, which can strengthen the relationship and communication within the relationship about common issues
• Estate Planning: Postnups also serve as estate planning tools by specifying how assets will be distributed upon death, which can be especially important when it they clarify issues related to blended families
• Business Protection: An agreement also serves to protect business interests by outlining what will happen to a business owned by one or both spouses in the event of a divorce or separation
• Peace of Mind: Finally, postnups provide a sense of security and peace of mind by having a clear plan in place for various scenarios which may be unique to the couple that enter into the agreement

What Can I Do to Protect Myself In a Postnuptial Agreement?

If you are considering entering into a postnuptial agreement, you should consider all the following points prior to executing the document:

• Always read the written contract carefully and completely before signing it, and check for any vague or questionable language that may be present in the agreement
• If you have doubts about the agreement, have a lawyer review the agreement with you before signing anything
• If your spouse has already hired their own lawyer to write the agreement, you should also be free to hire your own lawyer to represent you and examine the agreement on your behalf
  • In fact, some courts consider it unfair if only one party to a contract is represented by a lawyer, and a postnuptial agreement that was formed where only one spouse has a lawyer may be considered to be non-enforceable
• Try to anticipate situations that could result in a dispute between you and your spouse in the future, as this may help you draft specific provisions to include in the postnuptial agreement prior to executing it

Finally, if there are any plans for revisions of a previously executed postnuptial agreement, it is important to follow all of the above steps and requirements again. It is also important to keep track of the date of the execution of each document to be able to understand which agreement is currently in effect.

Do I Need an Attorney for Help With a Postnuptial Agreement?

As can be seen, there are numerous different topics that may be addressed in a postnuptial agreement. Further, failure to properly follow your state’s local requirements regarding valid and enforceable postnuptial agreements may result in your agreement being non-enforceable.

As such, if you are married and are wishing to learn about or execute a postnuptial agreement, then it is recommended that you consult with an experienced prenup attorney. LegalMatch can assist you with locating and setting up an initial consultation with a prenup attorney in your area. A lawyer will be able to help you understand your state’s specific laws on postnuptial agreements, including the exact requirements to make an enforceable agreement.

Additionally, an attorney will also be able to help you gather all of the evidence necessary to make the best decisions with regard to drafting and entering into a postnuptial agreement. They will also be able to help you review drafts of final agreements, and answer any questions you may have. Finally, an experienced prenup law attorney will also be able to represent you in court, as needed.