Use our postnuptial agreement after you get married to detail how your wealth and belongings will be divided if your relationship ends.
Updated January 16, 2024
Written by Josh Sainsbury | Reviewed by Brooke Davis
A postnuptial agreement (or a “postnup”) is a legal contract created after a couple gets married that outlines each partner’s financial rights and responsibilities in case the marriage ends in divorce, annulment, separation, or death. Aside from this contract’s timing, it’s similar to a prenup.
Both partners must have enough time to consider the agreement and sign it voluntarily to be valid. Without a postnuptial agreement, your state’s default laws on divorce or inheritance will apply to you and your partner.
Prenuptial (prenup) agreement – A legal document created before marriage outlining how assets and finances will be handled both during the marriage and in the event of a divorce.
A postnuptial agreement determines the division of assets between you and your spouse should your marriage end. With a postnuptial agreement, you can make these legal decisions after marriage.
This document also covers related elements such as debt, alimony, spousal support, or budget plans for retirement.
Both agreements address the division of assets after marital separation, but postnuptial agreements are drawn up after the marriage instead of a contract agreed upon beforehand.
A couple may consider getting a prenup if one partner brings more assets or debt into the marriage than the other. A couple may consider getting a postnup if they didn’t consider it before they got married and now deem it a good idea.
A separation agreement is a document with the same general functions as a postnuptial agreement but with a different intent. Spouses use separation agreements when they want to live apart but remain legally married for specific healthcare or tax benefits. They may have the intention of having a divorce later on.
Postnuptial agreements are not meant to prepare for an inevitable divorce. Instead, they act as a safety precaution if the marriage becomes strained.
A prenuptial agreement may not seem ideal until after you get married, which is no longer possible to create. Changes in the financial situation of a married couple, such as one person receiving an inheritance or taking on debt, may necessitate using a postnuptial agreement to protect one or both spouses.
A postnup may also simplify the legal process of getting a divorce by dividing the assets beforehand, assuming that both spouses can agree without needing separate divorce attorneys.
Certain niche cases, such as inheritance for children from another marriage or income generated from a business solely owned by one spouse, are also conditions to consider and protect if a marriage ends. These things may not be apparent until well into the marriage.
Here’s a list of steps on how to write a postnuptial agreement:
When writing a postnuptial agreement, you must provide the following information about both parties:
Each spouse should attach their information regarding their net worth, assets, income, holdings, liabilities, and debts. The law requires “full and fair disclosure” to enforce a postnup, so each person must fully disclose their financial affairs and include all relevant information.
This section is split into three subsections:
You can designate all prior property as separate, shared, or a mix of both. For anything acquired before marriage, you can decide that:
Marital property is any asset owned by both partners or property obtained during the marriage. In contrast, non-marital property is a property you don’t want to share with your partner. Non-marital property is also known as “separate” property.
You can specify in the agreement for all or any property that you do not want to be considered marital property so that only one person will have ownership/liability. In the case of divorce, non-marital property is not subject to division and remains the sole property of the individual.
Once you’re married, you can similarly decide that:
In the event of a divorce, you must specify how the marital property will be divided:
This section is split into two subsections:
If you or your spouse owns a business that existed before the marriage, you need to clarify how any increases in the value of the business will be divided:
If you or your spouse owns a business that was created during the marriage, you need to clarify how the company will be divided:
If either of you starts or inherits a business during marriage, you can choose whether to share any future increase in the value of the business. An inherited business would be classified as separate property unless marital funds are used to support the business financially. However, a business started during the marriage would be classified as marital property.
You should also specify if the business’s financial accounts will be excluded as marital property or not.
This section is split into four subsections:
It would be best if you clarified how debt owned by either you or your spouse will be treated:
Suppose you have any outstanding loans or financial obligations before getting married. You and your partner can decide whether these debts will remain only one person’s responsibility or whether both of you are responsible for repaying debts after marriage.
This is similar to the previous section; you will have the same options.
In the event of a divorce, you must specify how marital debt will be divided:
Here, you specify whether you want to file tax returns separately or jointly as a married couple.
You and your spouse share the marital home during your marriage. In this section, you must decide how the house will be divided. There are several options available to you:
Specify how you will share the household expenses during the marriage:
If you or your spouse has a pet you acquired during the marriage, you should clarify who will own the pet if the marriage ends. You can also state the visitation rights and schedule for the other party (e.g., monthly visits).
Ensure to add the following final details to your postnup:
State if both parties waive their right to spousal support in the event the marriage ends.
Include information about whether one party will support the other if they become disabled. Also, specify property inheritance rights if one party passes away.
Include any additional clauses here, such as having a sunset clause that terminates the postnuptial agreement after a certain amount of time has passed (e.g., five years) or an event has occurred (e.g., birth of a child).
Decide how parties will resolve disputes:
State the date and which state’s laws will be used to interpret this agreement.
Finally, notarize the agreement before a notary public to make your postnup a legally enforceable document.
It’s essential to check the laws of your state because each state may have specific requirements for postnuptial agreements. In general, there are several criteria that make a postnuptial agreement valid:
Review our postnuptial agreement template to ensure your postnup is valid and protects your assets effectively. Download it as a PDF or Word file:
