POSTNUPTIAL AGREEMENT

THIS POSTNUPTIAL AGREEMENT (the "Agreement") is entered into as of _____________ by and between _____________, residing at _____________, _____________, _____________ _____________, and _____________, residing at _____________, _____________, _____________ _____________ (collectively the "Parties" and each a "Party" to this Agreement).

WITNESSETH:

WHEREAS, the Parties are entering into this Agreement in regard to their marriage, which occurred on or about _____________;

WHEREAS, the Parties intend for this Agreement to establish their rights and liabilities with regard to their assets and debts that they now own or may hereafter acquire and their rights and responsibilities regarding finances and other matters pertaining to their marriage;

WHEREAS,

WHEREAS,

WHEREAS, each Party has executed this Agreement in good faith and upon an accurate and complete disclosure of all financial, property, and other matters related to this Agreement;

WHEREAS, each Party acknowledges that he or she has been informed of his or her relevant legal rights pertaining to this Agreement; has been informed that he or she should consult independent counsel of his or her choosing; has had the full opportunity to be counseled by an independent attorney of his or her choosing regarding this Agreement and his or her relevant legal rights; has had the full opportunity to review, negotiate, and consider the terms of this Agreement prior to execution; believes the terms contained in this Agreement are fair, just, and reasonable; and enters into this Agreement voluntarily without duress, undue influence, or improper consideration; and

NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and other valuable consideration, each Party promises to abide by the terms and conditions of this Agreement and to fully perform its obligations in good faith.

1. DEFINITIONS
1. "Separate Property" means i) all property of any kind in which one Party currently owns an interest and in which the other Party does not own any interest, as itemized on Schedules 1 and 2 attached hereto and incorporated herein by reference; ii) all property acquired by the Parties that is not considered Shared Property under this Agreement; iii) any inheritance, gift, devise, or bequest currently owned or later received by either Party independently of the other at any time, unless otherwise agreed in a signed writing for each item so received; iv) all profits, appreciation, reinvestments, and other proceeds received by either Party from any of the above property as well as any property purchased from the proceeds or income from such property; and v) any other property designated as Separate Property in a signed writing by the Parties. In the event of termination of the marriage, if a particular property cannot easily and unambiguously be construed as either Separate Property or Shared Property, such asset or property will be deemed Separate Property.
2. "Shared Property" means any property, whether real or personal, i) acquired by the Parties in which the Parties have signed documentation reflecting their clear intention to share ownership of such property; or ii) acquired by the Parties after executing this Agreement using the Parties' joint funds; as well as iii) all profits, appreciation, reinvestments, and other proceeds received by either Party from any of the above property as well as any property purchased from the proceeds or income from such property. Unless otherwise stated in an express writing signed by the Parties, each Party's ownership interest in any Shared Property will be .
2. SEPARATE PROPERTY. Each Party hereby agrees to make no claim to the Separate Property of the other Party at any time in the future, including in the event of a termination of the marriage or the death of the other Party, regardless of any time or effort invested by one Party in the maintenance, management, or improvement of the other Party's Separate Property. In the event that a Party makes such a claim, the losing Party agrees to indemnify the other Party against all costs, fees, and expenses arising from the claim, including attorney's fees and costs.
3. WAIVER OF RIGHTS TO SEPARATE PROPERTY. In the event that the Parties' marriage terminates due to divorce or annulment, each Party agrees to waive, release, and relinquish any right, title, or interest that he or she may acquire to the other Party's Separate Property by virtue of the Parties' marriage and further agrees not to make or join in any claims to such Separate Property, whether such rights or claims may arise under statute, common law, or otherwise, except as may otherwise be provided in this Agreement. This waiver applies to any such right, title, or interest that may arise at any time in the future, including after the death of the other Party, regardless of the jurisdiction. Additionally, this waiver includes any right to use, control, benefit from, and dispose of the other Party's Separate Property.
4. CONTROL OF SEPARATE PROPERTY. Each Party agrees to maintain sole ownership and control over his or her Separate Property in the same manner and as if no marriage had occurred between the Parties. Each Party will have the absolute and unrestricted right to use, control, benefit from, and dispose of its Separate Property, in whole or in part, at any time before, during, and after the marriage free of any claim or interference of the other Party by reason of their marriage. This right includes, without limitation, the right to sell, convey, devise, pledge, lien, mortgage, encumber, and otherwise dispose of the Separate Property. Each Party does not need authorization from the other Party to exercise this right and may exercise it with his or her sole signature, act, or authorization.
5. WAIVER OF COMMUNITY PROPERTY RIGHTS. In the event that the Parties' marriage terminates due to divorce or annulment, the Parties agree to waive, release, and relinquish any community property rights they may acquire under the laws of any jurisdiction in which they now reside or may later become residents, including any foreign jurisdictions. Therefore, both Parties are voluntarily giving up any claim to statutory rights for property division according to any community property state law.
6. SHARED PROPERTY. The Parties agree that each Party's ownership interest in any Shared Property, as defined herein, will be . The incidents and attributes of ownership and other rights of the Parties with respect to any Shared Property will be governed according to state law and not according to this Agreement; however, the determination of the intentions of the Parties regarding what is and is not to be considered Shared Property will at all times be construed according to this Agreement. The Parties may reclassify Shared Property as Separate Property, or Separate Property as Shared Property, by signing an express writing to that effect at any time. Nothing in this Agreement restricts or prohibits any conveyance, transfer, or acquisition of any property into a tenancy in common, joint tenancy, or any other form of concurrent or joint ownership by or between the Parties, whether or not such property is first considered Separate Property under this Agreement.
7. WAIVER OF RIGHTS TO RETIREMENT BENEFITS. Each Party hereby waives, releases, and relinquishes any right or interest he or she may obtain at any time, whether created by statute or otherwise, to the pension, profit-sharing, or other retirement benefits that the other Party may earn or in which the other Party may acquire an interest. This waiver includes, but is not limited to, any rights of survivorship, joint ownership rights, or other rights or interests that may arise by virtue of termination of the marriage. Retirement plans and benefits in the name of one Party will remain that Party's Separate Property, including all accumulations and contributions to such plans and benefits, whether before or during the marriage. Each Party reserves the right to retain sole ownership, control, and use over his or her retirement plans and benefits without interference from the other Party. Nothing in this Agreement restricts or prohibits the right of a Party to appoint the other Party as a beneficiary of a retirement plan or benefit.
8. WAIVER OF ESTATE CLAIMS. In the event that the Parties' marriage terminates due to the death of one of the Parties, each Party agrees to waive, release, and relinquish any right, title, or interest that he or she may acquire in the estate of the deceased Party by virtue of the Parties' marriage, as a surviving spouse, as an heir at law, or otherwise, and further agrees not to make or join in any claims to such estate, whether such rights or claims may arise under statute, common law, or otherwise, except as may otherwise be provided in this Agreement. This waiver applies to any such right, title, or interest that may arise at any time in the future, regardless of the jurisdiction, and includes, without limitation, any rights to distribution in intestacy, an elective share, an exempt property and family allowance, the share of an omitted spouse, dower, courtesy, or homestead as well as any rights to act as executor, guardian, or other personal representative.
9. OTHER TRANSFERS OF PROPERTY. Nothing in this Agreement will be construed to restrict or prohibit the Parties from transferring property to one another during their respective lifetimes by will, trust, or otherwise; from appointing one another as beneficiaries in their wills, retirement plans, life insurance policies, or similar policies or benefits; or from exercising their powers of appointment in favor of one another, including, without limitation, the ability to appoint the other Party as executor, guardian, or trustee.
10. COMMINGLING PROPERTY. Nothing in this Agreement will be construed to restrict or prohibit the Parties from voluntarily commingling their respective Separate Property to provide for their living expenses, mutual support, or for any other reasons the Parties so choose.
11. TAXES. Nothing in this Agreement will be construed as restricting or prohibiting the Parties from filing taxes jointly or from exercising any rights normally due to spouses under state and federal tax law. The Parties agree that the act of filing a joint tax return will not convert any Separate Property into Shared Property, create any joint or concurrent ownership interest, or give one Party equitable property rights in the other Party's Shared Property.
12. CHILD SUPPORT. During the marriage, each Party agrees to provide reasonable support for the health, education, and maintenance of any biological or adopted minor children who they may have or of which they become guardians. This requirement does not in itself impose any legal requirement for either Party to continue to provide support for any such minor children. With the exception of this requirement, the Parties agree that them becoming parents or guardians of any such minor children will have no effect and cause no modification of any other terms of this Agreement. Nothing in this Agreement will be construed to restrict or prohibit each Party's right to claim child support for any biological or adopted minor children who the Parties may have together.
13. COOPERATION OF THE PARTIES. Each Party agrees to cooperate with any request by the other Party or any third party in executing any documents and taking any other actions appropriate or necessary to carry out the terms and intent of this Agreement.
14. ATTORNEY'S FEES. In the event that a Party is required to initiate a proceeding in order to enforce the terms of this Agreement, the prevailing Party will be entitled to recover all expenses for such enforcement, including reasonable attorney's fees and costs.
15. RIGHT TO CONTEST. Nothing in this Agreement restricts or prohibits a Party from contesting any domestic relations suit between the Parties or to file a countersuit against the other Party. In any such suit, the Parties agree that the terms of this Agreement will be the full and final settlement of any disputes related to the matters specified in this Agreement.
16. MISCELLANEOUS TERMS
1. Entire Agreement. This Agreement, including any attachments, exhibits, and amendments hereto, represents the entire and singular Agreement between the Parties pertaining to the matters specified herein, and any prior agreements, promises, or representations not included herein are void and of no effect.
2. Revocation and Modification. Any modification or revocation of this Agreement must be done in an express written agreement to such effect signed by the Parties. The rights stated herein may not be waived except by express written agreement between the Parties.
3. Counterparts. This Agreement may be executed in counterparts, each an original but all considered part of one Agreement.
4. No Waiver. The failure or delay by a Party to enforce a right or privilege under this Agreement will not operate as a waiver of such right or privilege or of any other term of this Agreement, and any single or partial exercise of a right or privilege will not preclude the further exercise of that or any other additional rights or privileges. A Party's waiver of a particular right or privilege on one occasion will not prevent that Party from enforcing the same right or privilege in the future.
5. Binding Effect. This Agreement will insure to the benefit of and will be binding upon the Parties and their respective legal representatives, heirs, and assigns.
6. Severability. The Parties have attempted to limit the terms of this Agreement so that they apply only to the extent reasonably necessary to protect legitimate property interests. If any provision of this Agreement is held to be invalid or unenforceable for any reason, that provision will be considered removed from this Agreement, and the remaining provisions will continue to be valid and enforceable according to the intentions of the Parties. However, if a court or arbitration panel finds that any provision of this Agreement is invalid or unenforceable as currently written, but that by rewriting or limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as is necessary to further the intent of the Parties to the maximum extent permitted by law.
7. Construction. In this Agreement, the masculine, feminine, and neuter genders will be interpreted to include each other, as will the singular and plural. Headings used herein are for convenience only and will not be interpreted to give any meaning to their respective provisions.
8. Governing Law. This Agreement will be governed and construed according to the laws of the State of _____________.
17. ACKNOWLEDGMENTS. The Parties understand and acknowledge the following:
1. That he or she has had a full and adequate opportunity to read and consider all of the terms stated in this Agreement before signing it and to consult an attorney of his or her choosing, free of any pressure, duress, or coercion.
2. That he or she has been advised to consult independent legal counsel concerning the legal rights, liabilities, and implications related to this document and has either done so or has voluntarily chosen to forego such counsel.
3. That he or she has had a full and complete opportunity to inquire and review the financial information provided by the other Party, and each Party swears that he or she has made a full and complete disclosure of his or her assets, liabilities, and other relevant financial information to the other Party and waives any right to further disclosure of such financial information.
4. That, although this Agreement may be considered by a divorce or domestic relations court, such courts may choose to disregard certain provisions in postnuptial agreements, including those regarding property division and spousal support.
5. Each Party acknowledges and agrees that no changes in the health, financial, or other circumstances of either Party will have any effect on the terms of this Agreement, including, but not limited to, any improvement or impairment in the financial circumstances or earning capacity of one of the Parties.

By signing this Agreement, each Party hereby represents and swears that he or she has read the entire Agreement and that all terms stated herein are fair and reasonable and not the product of fraud, force, or undue influence.

________________________ Date: __________
_____________

________________________ Date: __________
_____________

Witnesses

On this the ____ day of ________, 20____, the foregoing instrument was sworn to and acknowledged before me by the following person(s), known or proven to me to be the person(s) whose name(s) is/are subscribed to within the postnuptial agreement entered into as of _____________ by and between _____________ and _____________. I further swear that I am unrelated to the parties signing this document by blood and hold no interest in the matter.

FIRST WITNESS Signed: ________________________ Dated: _________________________ Print Name: _____________________ Address: ________________________ ________________________________ ________________________________

SECOND WITNESS Signed: ________________________ Dated: _________________________ Print Name: _____________________ Address: ________________________ ________________________________ ________________________________

NOTARY ACKNOWLEDGMENT

State of _____________
SS.
County of _____________

On _____________, before me, personally appeared _____________ who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to within this POSTNUPTIAL AGREEMENT, and acknowledged to me that he or she executed the same in authorized capacity, and that by his or her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

I certify under PENALTY OF PERJURY that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Print: ____________________________     Commission Expires: _______________

Sign: ____________________________      [Affix seal]

            NOTARY PUBLIC

NOTARY ACKNOWLEDGMENT

State of _____________
SS.
County of _____________

On _____________, before me, personally appeared _____________ who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to within this POSTNUPTIAL AGREEMENT, and acknowledged to me that he or she executed the same in authorized capacity, and that by his or her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

I certify under PENALTY OF PERJURY that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Print: ____________________________     Commission Expires: _______________

Sign: ____________________________      [Affix seal]

            NOTARY PUBLIC

Schedule 1

_____________________

Financial Information

Assets

Value

Details

Total Assets $0.00

Debts

Amount

Details

Total Debts $0.00

Net Worth $0.00

Income Source

Annual Amount

Total Income $0.00

By signing below I represent and verify that the information contained in this Schedule 1 is true and complete to the best of my knowledge and belief and that I have received a copy of this Schedule.

________________________ Date: __________
_____________

________________________ Date: __________
_____________

Schedule 2

_____________________

Financial Information

Assets

Value

Details

Total Assets $0.00

Debts

Amount

Details

Total Debts $0.00

Net Worth $0.00

Income Source

Annual Amount

Total Income $0.00

By signing below I represent and verify that the information contained in this Schedule 2 is true and complete to the best of my knowledge and belief and that I have received a copy of this Schedule.

________________________ Date: __________
_____________

________________________ Date: __________
_____________

Acknowledgments and Waiver Rights under State Law

In connection with the Postnuptial Agreement executed concurrently herewith, I hereby understand and acknowledge the following rights and obligations under state law:

1. State Law Disclosure. Like most states, _____________ is considered an "equitable distribution state." This means that, in the event of a divorce, judges may consider a variety of factors in order to determine an equitable (or fair) division of the assets and liabilities. Common factors include the length of the marriage, the relative earning potential of each spouse, each spouse's contributions to the marriage partnership (including domestic duties and raising children at home), each spouse's contribution toward supporting the other in pursuing education or career training, the relative health of the spouses, and each spouse's financial needs.
   
   In an equitable distribution state, income and other employment benefits earned during the marriage are considered shared marital property (as opposed to separately owned property). Examples include paid time off, sick leave, vacation pay, stock options, 401(k) plans, and savings plans. If one spouse owns a business prior to the marriage, the other spouse may acquire an interest in the business if the business increases in value during the marriage.
   
   Similarly, most debts incurred during the marriage are considered shared marital debts. Only debts that are not related to marriage may be considered separate, such as debts incurred before or after the marriage, debts tied to separate property, or debts related to one spouse's criminal wrongdoing. A common example of a separate debt is educational loans acquired by one spouse before the marriage.
   
   Generally, separate property includes 1) property owned by one spouse before marriage, 2) property received by one spouse after legal separation or divorce, and 3) gifts or inheritance received by only one of the spouses individually from a third party during the marriage. Any earnings, income, or appreciation of separate property will remain separate. Note that separate property may become marital property if the spouses take action to convert it. For example, if one spouse owns a home before the marriage, the home may become marital property through adding the other spouse's name to the deed.
   
   When a marriage in an equitable distribution state terminates due to divorce, the court is empowered to review the parties' property and make an equitable, but not necessarily equal, division of the assets and debts under state law. Courts will generally seek to avoid a division that impairs the value of the assets.
   
   When a marriage in an equitable distribution state terminates due to the death of a spouse, the other spouse may choose to receive an "elective share" instead of receiving property under the deceased spouse's last will and testament. If the surviving spouse chooses the elective share, state statutes allow that spouse to receive a fixed fraction of the deceased spouse's assets, typically between 1/4 and 1/2 of the net probate estate.
   
   Although spouses may try to come to an agreement as to issues of alimony, child support, and child custody upon divorce or separation, the court will make the final determination regarding these issues. Child support is often determined according to a standardized formula, while custody is based on the best interests of the child.
2. Waiver of Equitable Distribution Rights. _____________ is an equitable distribution state but allows spouses to alter their rights under state law by written agreement. I UNDERSTAND THAT BY SIGNING THIS POSTNUPTIAL AGREEMENT I AM WAIVING ANY AND ALL RIGHTS I WOULD HAVE ACQUIRED UNDER THE RELEVANT EQUITABLE DISTRIBUTION LAWS OF THE STATE.
3. Waiver of Rights to Separate Property. I UNDERSTAND AND AGREE THAT BY SIGNING THIS AGREEMENT I AM WAIVING ANY AND ALL RIGHTS TO THE SEPARATE PROPERTY OF MY SPOUSE, AS DEFINED BY THE AGREEMENT.
4. Waiver of Rights to Retirement Benefits. I UNDERSTAND AND AGREE THAT BY SIGNING THIS AGREEMENT I AM WAIVING ANY AND ALL RIGHTS TO ANY INTEREST IN RETIREMENT BENEFITS THAT MY SPOUSE MAY ACQUIRE.
5. Waiver of Estate Claims. I UNDERSTAND AND AGREE THAT BY SIGNING THIS AGREEMENT I AM WAIVING ANY AND ALL RIGHTS I MAY HAVE BY VIRTUE OF MARRIAGE IN MY SPOUSE'S ESTATE SHOULD MY SPOUSE PREDECEASE ME, INCLUDING, BUT NOT LIMITED TO, ANY RIGHTS TO DISTRIBUTION IN INTESTACY, AN ELECTIVE SHARE, AN EXEMPT PROPERTY AND FAMILY ALLOWANCE, THE SHARE OF AN OMITTED SPOUSE, DOWER, COURTESY, OR HOMESTEAD.
6. I have had a full and adequate opportunity to read and consider all of the terms stated in this Agreement before signing it and to consult an attorney of my choosing, free of any pressure, duress, or coercion.
7. I have been advised to consult independent legal counsel concerning the legal rights, liabilities, and implications related to this document and have either done so or have voluntarily chosen to forego such counsel.
8. I have had a full and complete opportunity to inquire and review the financial information provided by my spouse, and I swear that I have made a full and complete disclosure of my own assets, debts, liabilities, and other relevant financial information to my spouse and I waive any right to further disclosure of such financial information.
9. Although this Agreement may be considered by a divorce or domestic relations court, I understand that such courts may choose to disregard certain provisions in postnuptial agreements, including those regarding property division and spousal support.
10. Each spouse acknowledges and agrees that no changes in the health, financial, or other circumstances of either spouse will have any effect on the terms of this Agreement, including, but not limited to, any improvement or impairment in the financial circumstances or earning capacity of one of the Parties.

Signed: ___________________________ Date: ______________________
             _____________

Signed: ___________________________ Date: ______________________
             _____________

Instructions for Your Postnuptial Agreement

Separate and Shared Property

Defining what property is considered "separate property" and what property is considered "shared property" is one of the central features of any postnuptial agreement. Shared property is any property in which the spouses have signed documentation reflecting their clear intention to share ownership or any property purchased using joint funds. Each party will receive an interest in property purchased using joint funds (funds from both spouses) in proportion to their contribution.

Note that the parties may always change the amount of their ownership interests in shared property or reclassify separate property as shared property (and vice versa) through a written agreement. In the event of divorce, shared property will be divided, typically by either selling the property and dividing the proceeds or by one spouse keeping the property and paying the other spouse half of the value.

Enforcing the Agreement

It is important to realize that courts are not required to follow every term in a postnuptial agreement. For instance, courts in some states are not necessarily required to follow provisions related to spousal support. Divorce and family courts must first determine which provisions of the spouses' postnuptial agreement will in fact be upheld. However, by using a postnuptial agreement, the spouses are greatly improving their odds of having their original wishes carried out in the event the marriage ends by divorce, annulment, death of a spouse, or otherwise. It is recommended that each spouse consult their own independent counsel regarding their rights and obligations under this agreement.

Waiver of Independent Counsel

It is recommended that each spouse consult his or her own independent counsel to review the rights and obligations under this agreement, especially if one party has more bargaining power or higher education. However, in the event that the parties opt to waive (give up their legal right) to independent counsel, the parties need to sign the waiver attached to the agreement titled "Advisement and Waiver of Independent Counsel." Please note that Minnesota and South Carolina always require each party to be represented by independent counsel. We do not provide the waiver of independent counsel if you are signing the agreement in one of these states. Furthermore, independent counsel is strongly advised in Alabama and Massachusetts, but not required.

Full Disclosure

It is also very important that both spouses be completely thorough in disclosing all assets, debts, and income sources in the document. Failing to do this can result in the agreement being invalidated if it is ever litigated in court.

Dispute Resolution

It is recommended that you include a mediation and/or arbitration provision when prompted. This will require disputes to be settled through mediation or binding arbitration and avoid the time and expense of going through the formal court system.

Last Will and Testament

A postnuptial agreement is not a replacement for having a last will and testament (see LegalNature's last will and testament available for download). Furthermore, nothing in this agreement prevents the parties from naming each other as beneficiaries in their wills, trusts, or retirement plans.

Waiting Period

State law normally requires that both spouses have at least a reasonable amount of time from the time they first receive the postnuptial agreement to review it and seek any legal or financial counsel before signing. It is highly recommended that the spouses wait at least one week from the time of first receiving the agreement before signing to ensure that the agreement will be enforceable.

Executing 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. You should then sign where indicated in the presence of a notary and two witnesses (three witnesses are needed in New Hampshire and Vermont).