What is a postnuptial agreement?

A postnuptial agreement is a legal contract that spouses enter into with one another after being married to establish how the couple’s assets, debts, and income would be split in the event the marriage was to end in divorce or due to death. In the event that a couple who have signed a postnuptial agreement later decide to go their separate ways, the postnuptial agreement can make the divorce process faster, less expensive, and significantly easier.

What's the difference between a "postnuptial agreement" and a "prenuptial agreement"?

The key difference between prenuptial and postnuptial agreements is timing. While postnuptial agreements are signed only after the marriage has already taken place, prenuptial agreements are created and signed before a couple is legally married.

Why would someone consider creating a postnuptial agreement?

Contrary to popular belief, neither postnuptial agreements nor prenuptial agreements are intended to be signed in contemplation of divorce. Instead, a divorce settlement agreement should be used in this situation. Postnuptial agreements are increasingly being used by newlyweds as a practical means of disclosing their personal finances and agreeing to a fair division of assets in the event of divorce or the death of a spouse. This often helps decrease the incentive for divorce by ensuring each spouse’s assets and debts stay separate. Spouses also commonly use postnuptial agreements when one or both of them has children from a previous relationship who they want to protect in the event of a future divorce. Postnuptial agreements may also be used when one spouse has amassed a sizable amount of debt, or when one spouse inherits assets from a deceased loved one’s estate. In these cases, a postnuptial agreement can help protect each party's interests.

Is a postnuptial agreement created in one state valid in another state?

As postnuptial agreements are governed by individual state contract laws, there are some state-specific differences. However, generally speaking, a postnuptial agreement created in one state will likely be valid in another state as long as it was validly negotiated, drafted, and executed. It may be advisable to have an attorney in your state review the agreement to provide a legal opinion about its enforceability in that state.

Can postnuptial agreements be changed or cancelled?

Yes. Sometimes, postnuptial agreements are designed with an end date in the original agreement. For example, an agreement could provide that, if the couple is still married 15 years after the agreement was signed, it will become null and void. As with any type of legal contract, both parties could mutually agree to terminate and revoke a postnuptial agreement or to change one or more of its provisions. Any such revocation or change should be made in writing, following the same legal formalities as the original agreement.

Can postnuptial agreements be used to set child custody and child support arrangements?

Postnuptial agreements can be used to establish how each spouse would be treated financially in the event the marriage was to end. However, these agreements cannot be used to outline the parties’ wishes for child custody arrangements or child support. Child custody and support should be determined at the time of a divorce with the minor child’s best interests in mind. When spouses create a postnuptial agreement during their marriage, it is impossible to know what their situation, and their children’s best interests, will be in a hypothetical future divorce scenario.

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FAQS

When to use a postnuptial agreement

A practical means of disclosing personal finances is required.
One or both spouses has children from a previous relationship.
One of the spouses has amassed a sizable amount of debt.
One of the spouses has inherited sizeable assets from an estate.

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Provide Information About Your Marriage

Enter both the name and address of each spouse along with the date the marriage was celebrated. Also, include the date of marriage and specify whether or not cohabitation took place between the spouses prior to marriage. If either spouse has been married before or already had children, these details should also be included.

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List Each Spouse's Debts and Assets

It's important to indicate whether or not a certain property is "shared property" (i.e., any property in which the spouses have signed documentation reflecting their clear intention to share ownership). It is also very important that both spouses be completely thorough in disclosing all assets, debts, and income sources in the document.

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Decide How Disputes Will Be Resolved

You have the option of requiring disputes to be resolved through mediation and/or arbitration. In mediation, an impartial mediator helps the parties discuss the legalities of their conflict in order to reach an agreement. Arbitration is similar except that the arbitrator issues a legally binding ruling on the dispute.

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Execute Your Agreement

In order to make sure your agreement is legally valid, you need to ensure that it is properly executed. When the parties are ready to sign, they should be sure to initial at the bottom of every page of the agreement in order to show that each page was read.

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