What Is a Postnuptial Agreement?

A postnuptial agreement is a contract between spouses right after entering into marriage. It outlines the ownership rights of the couple in terms of financial assets if and when a divorce happens. The agreement also specifies the responsibilities surrounding the children of the couple and all obligations throughout the union. Postnuptial agreements are also known as post-marital agreements. Similar to prenuptial agreements, the purpose of postnuptial agreements is to alleviate the tension between spouses when it comes to financial concerns. Entering in this arrangement allows the couple to have an equitable distribution of their assets if and when the marriage dissolves and ends up in signing divorce agreements. For many people, writing any type of marital agreement is taboo and does not express the sanctity of marriage, love, and union. However, if it brings peace of mind and remedy to any financial discomfort, the spouses can choose on their accord to engage in the agreement to keep marital harmony.

According to the information from the Centers for Disease Control and Prevention and the National Center for Health Statistics, the number of marriages in the United States reached up to 2.015 million in 2019. In the same year, over 745 thousand couples ended up in divorce from 45 reporting states and D.C.

Components of a Postnuptial Agreement

When it comes to writing postnuptial agreements, accepting and honoring the contents of the document all depends on the state law that governs it. However, it is safe to assume that just like other legal documents, there are terms and conditions that the spouses must consider gaining the most out of the postnuptial agreement. The following section details the components of a postnuptial agreement that a married couple must indicate in their document with descriptions for better understanding.

Asset division: Both individuals come into the marriage with their respective assets and personal properties before meeting their spouse and being united in matrimony. It is also possible that the couple acquires assets and property during the duration of their marriage. In either of these situations, the postnuptial agreement outlines the possibilities and processes of dividing assets to the spouses if and when the marriage ends.Marital debts: Similar to the couple gaining assets and properties throughout their marriage, there are instances where they also gain debts. These debts vary and range from credit card debts, including mortgages, subscription deals, and monthly bills like child support and healthcare expenditures. Through the postnuptial agreement, the couple can discuss and indicate information and procedures on how to divide the acquired debts in the event of a divorce.Spousal support: The postnuptial agreement also talks about the couple’s decision regarding one party gaining spousal support after the marriage. The situation usually happens when one of the spouses needs to quit their job to stay at home and manage family life and their children.Childcare or child support: If the marriage brings about and involves children, the spouses can include a section that talks about child support and child custody in the postnuptial agreement. This particular section of the postnuptial agreement becomes very specific, detailing processes and procedures to follow in the case of a divorce. For example, postnuptial agreements specify the days of the week or the periods that one of the parents gets to spend time with the child or children.Asset distribution after death: The postnuptial agreement also includes the possible scenarios and solutions if one of the spouses suffers an untimely death while they are still married. The document contains particular guidelines regarding the transfer of assets depending if the couple plans on getting a divorce, and in the middle of the proceedings, one of them passes away. This provision of the postnuptial agreement displaces or replaces documents like a last will and testament.

How To Guarantee that a Postnuptial Agreement is Valid

Similar to other legal documents, there are certain requirements that the postnuptial agreement must have for it to be legally binding. For the agreement to be valid and enforceable, there are particular elements at minimum that it must satisfy. The section below details these elements, along with explanations for better comprehension.

  • 1. The Postnuptial Agreement Must Be in Writing

    Oral postnuptial agreements are not valid and will have difficulting holding up in a court of law.

  • 2. Parties in the Agreement Must Consent and Have Full Duress on the Contents of the Agreement Before Signing

    Both parties of the postnuptial agreement must sign the agreement voluntarily with full knowledge of its contents intentionally. Any indication that one of the parties has to suffer coercion or threats for them to affix their signatures makes the postnuptial agreement null and void.

  • 3. The Postnuptial Agreement Must Be Fair for the Involved Parties

    It is critical for the agreement not to be unconscionable. If courts find out that the postnuptial agreement appears to be unjust or in favor of only one party, according to the content, facts, and circumstances, it will not hold up in court and become unenforceable.

  • 4. Ensure that the Postnuptial Agreement Contains Only the Essential, Factual, and Comprehensive information

    Full and fair disclosure of the contents and information of the postnuptial agreement is necessary to guarantee that the document is valid and enforceable. At the time the spouses engage in writing the agreement, each party must state a full and fair disclosure of all of their assets, liabilities, and income statements. It is an essential element to make the document valid and enforceable since the postnuptial agreement needs to determine how the assets, liabilities, and support obligations will unfold if and when the marriage ends. If the information that one party discloses becomes compromised, inaccurate, or incomplete, the court is unable to enforce the contents of the agreement.

  • 5. The Law Must Properly Execute the Contents of a Postnuptial Agreement

    Postnuptial agreements follow the different requirements for each state, and the document must adhere to them. For the postnuptial agreement to be enforceable and valid, some states require a legal notary for the signatures of the spouses. There are also instances that a state imposes additional requirements like having a witness for the signing of the document.

Reasons Behind the Creation of a Postnuptial Agreement

A married couple can seek a postnuptial agreement for any reason they choose. It can be something as simple as not being able to write a prenuptial agreement before the marriage. When using a postnuptial agreement, the couple can think about and make decisions about several financial considerations they want to address along the way, even after the exchange of vows. Postnuptial agreements tackle issues relating to money and asset security in the event of a divorce. If you are ever planning to create one after the marriage, the section below provides situations and considerations to secure one with your spouse.

Protecting the inheritance of one or both spouses: Most divorce attorneys agree that having a postnuptial agreement is advantageous for both or either spouse that receives a large amount of inheritance. It is more likely for these couples to have a clear understanding in writing of who acquires the money if and when divorce happens. It is essential to point it out, especially for community property states, because it tells the couple that all acquired assets during the marriage must be equally divided towards spouses. The inheritance that one party receives during the duration of the marriage is not usually community property states. However, certain situations that brand inheritance as a co-mingled property. Writing the postnuptial agreement supersedes the equal claim on property and assets for the spouses to have and keep their inheritances.Providing for spousal support: In terms of marriage, there is a possibility that one spouse needs to support the other. It happens when the earning power of the spouse dwindles due to taking care of their children or children from a past relationship, with the parent committing to do parental duties for them while staying at home. If the marriage eventually ends up in divorce, the spouses must agree on covering spousal support.Dividing business interests from owning one: When it comes to assets like bank accounts, insurance plans, and retirement funds is relatively easy to place values in during a divorce trial. However, when it comes to a business venture wherein one or both spouses are principals, it becomes difficult to produce accurate values. Since discerning the value of a company or business is time-consuming and expensive, spouses opt to utilize postnup agreements to categorize their business as a separate property that belongs and stays with the individual who holds the title for the company. In return, the postnuptial agreement indicates that the couple agrees to give a larger portion of non-business assets to the other party. Without the postnup, there is a possibility that an ex-partner acquires a percentage of the business and its revenue.Repaying marriage gifts: In case one of the partner’s parents provides or gives the couple a large amount of money, for example, as a down payment for a house rental, the divorce settlement process can be uncomfortable for all involved parties. In setting a postnuptial agreement, the parents will have the peace of mind that the couple can go with reimbursement procedures if the relationship becomes complicated. The agreement can specify that the family that offers the money to the spouses can receive a particular amount in assets to recoup funds.Acquiring postnuptial agreement over prenups: Some individuals feel like writing a prenuptial agreement is pointless, time-consuming, and stress-inducing activity. Meanwhile, some believe that talking about divorce before marriage happens is taboo, dooming the marriage from the start. Instead, spouses go for postnuptial agreements as they do not want to her awkward discussions or conversations from friends or family members about dividing assets before the wedding day. Therefore, these kinds of negotiations are more comfortable and much easier to conduct once a newly married couple already has a routine for their life together.


Are postnuptial agreements legally binding?

Most postnuptial agreements are valid and fully enforceable if it adheres to the requirements of state laws connecting to inheritance issues, child visitations and custody, and monetary support in the case of divorce.

Is having a postnuptial agreement a good idea for marriage?

In certain situations, establishing a postnuptial agreement is beneficial for couples that do not have a prenuptial agreement.

What is the difference between a prenuptial and postnuptial agreement?

The most significant difference between the two documents, as the name suggests, is that prenuptial agreements happen before a wedding, while negotiations of the postnuptial agreements occur after.

People must understand that discussing the division of assets, property, and other financial concerns is not taboo for married couples. It is more meaningful to have a sense of security when it comes to handling one’s assets and finances. A postnuptial agreement works wonders for couples that prioritize safety in finances when things don’t go as planned. For the benefit of spouses and their families in the worst-case scenario, some provisions and conditions are already in place and are just waiting for implementation. Download a postnuptial agreement to secure finances for both individuals by downloading the 16+ SAMPLE Postnuptial Agreement in PDF today, only at Sample.net.