Postnuptial Agreement: How To Write It Right!

Disclaimer: While this guide provides general information on creating a postnuptial agreement without the assistance of a lawyer, it’s important to understand that legal nuances and requirements can vary by jurisdiction. 





Engaging a lawyer ensures the agreement is comprehensive, enforceable, and meets all legal standards.

1. Understand the Purpose of a Postnuptial Agreement

A postnuptial agreement, like its pre-marriage counterpart (prenuptial), is a contract between spouses detailing how assets, debts, and other financial matters will be handled during the marriage or in the event of a divorce. 

It’s drafted after the couple is already married, usually to address changes in the relationship or financial circumstances.

2. Ensure Voluntariness

Both parties must enter into the agreement voluntarily. Coercion or duress can invalidate the agreement.

3. Full Disclosure

Each spouse must fully disclose their financial situation. This includes assets, debts, income, and expenses. Concealment of assets can render the agreement null and void.

4. Draft the Agreement

a. Introduction

Begin with the full names of both spouses and the date of the agreement. State the intention to create a postnuptial agreement.

b. Recitals

This section provides context. It briefly describes the parties, their marital status, and the reason for the agreement.

c. Definitions and Terms

Here, you’ll define any specific terms used throughout the document.

d. Division of Assets

Clearly outline which assets are marital and which are separate. Specify how assets will be divided in case of divorce or separation.

e. Spousal Support

State whether one spouse will pay alimony or spousal support to the other in case of divorce, and if so, how much and for how long.

f. Debt Liability

Outline how current and future debts will be handled. Will they be shared equally, or will each party be responsible for their own debts?

g. Estate and Inheritance

Describe any arrangements related to inheritance and estate planning.

h. Provisions for Children

If the couple has children, clarify any financial responsibilities concerning their upbringing, education, and welfare.

i. Disclosure

Affirm that both parties have fully disclosed their financial situation.

j. Amendments

Describe the process for making changes to the agreement in the future.

k. Governing Law

State the jurisdiction or legal standards that will apply to interpret the agreement.

l. Entire Agreement

Clarify that the document constitutes the entire agreement between the parties and supersedes any prior understandings or agreements.

m. Severability

If one clause is found unenforceable, this provision ensures the rest of the agreement still stands.

n. Signatures and Dates

Both parties should sign and date the agreement.

5. Make It Fair

An agreement that’s heavily biased towards one party may not be enforceable. Ensure the terms are reasonably fair to both parties.

6. Witness and Notarization

While not always necessary, having the document witnessed and notarized can lend credibility and make it more enforceable.

7. Regularly Review and Update

Financial and personal circumstances change. Regularly reviewing and, if necessary, updating your postnuptial agreement ensures it remains relevant.

8. Seek Legal Review (Recommended)

While this guide provides an outline for creating a postnuptial agreement without a lawyer, it’s recommended that the final document be reviewed by a legal professional to ensure it’s valid and enforceable in your jurisdiction. 

Even if you draft it yourselves, a lawyer’s expertise can be invaluable in ensuring it meets all necessary legal requirements.

Conclusion

In conclusion, while creating a postnuptial agreement without a lawyer is feasible, caution and diligence are required to ensure the document is both fair and legally enforceable.

Postnuptial Agreement Sample

Postnuptial Agreement


This Agreement is made this ___ day of ____, 20, between [Spouse 1 Full Name], hereinafter referred to as “Party A”, and [Spouse 2 Full Name], hereinafter referred to as “Party B”.


Recitals

WHEREAS, Party A and Party B are currently married, having been wed on [Date of Marriage];

WHEREAS, both parties wish to define and determine their respective rights and responsibilities regarding their individual and joint property, both in the present and future;

NOW, THEREFORE, in consideration of the mutual covenants and promises made by the parties hereto, Party A and Party B covenant and agree as follows:


1. Full Financial Disclosure: Each party acknowledges they have fully disclosed to the other their financial status, including assets, liabilities, income, and expenses.


2. Property Owned Prior to Marriage: All property owned by each party prior to the marriage will remain the separate property of that party.


3. Division of Marital Property: Any property acquired during the marriage, unless specified as a gift or inheritance to one party, will be divided as follows:

  • [Describe how property will be divided. For example, “Each party will retain 50% interest in the marital home located at [Address].”]

4. Division of Marital Debts: Debts incurred during the marriage will be divided as follows:

  • [Describe division. For example, “Credit card debt on the joint account will be split equally.”]

5. Spousal Support: In the event of a separation or divorce:

  • Party A will [provide/not provide] spousal support to Party B.
  • Party B will [provide/not provide] spousal support to Party A.

6. Amendments: This Agreement can only be amended or revoked in writing and signed by both parties.


7. Governing Law: This Agreement shall be governed by the laws of the state of [Your State].


8. Entire Agreement: This Agreement contains the entire agreement between the parties and supersedes all prior negotiations, understandings, and agreements between the parties.


9. Severability: If any provision of this Agreement is deemed unenforceable, the remaining provisions will remain in full force and effect.


IN WITNESS WHEREOF, Party A and Party B have executed this Postnuptial Agreement as of the date first above written.


Signature of Party A Signature of Party B


Note: This is a basic sample of a postnuptial agreement and may not cover all legal issues that could arise during your marriage. It is strongly advised to consult with a legal professional or specialist before finalizing and signing any legal document.

Frequently Asked Questions (FAQs)

Q: What is a Postnuptial Agreement? 

Answer: A Postnuptial Agreement is a written contract entered into by two individuals after they are already married. This agreement typically outlines the division of assets, debts, and other financial responsibilities in the event of a divorce, separation, or death. 

Unlike a prenuptial agreement, which is created before marriage, a postnuptial agreement is formed after the marriage has taken place.


Q: Why would a couple need a Postnuptial Agreement? 

Answer: Couples may choose to draft a Postnuptial Agreement for various reasons. Some common motives include significant changes in financial situations, such as inheritance or sale of a business, shifts in personal relationships, or simply to clarify financial responsibilities during the course of the marriage.

Essentially, a Postnuptial Agreement provides a roadmap for managing finances and assets, offering both parties clarity and security.


Q: How is a Postnuptial Agreement different from a Prenuptial Agreement? 

Answer: Both are legal documents outlining the division of assets and responsibilities, but the key difference is the timing. A prenuptial agreement is established before marriage, while a postnuptial agreement is drafted after the couple is already married. 

The content of the two can be quite similar; however, the motivations for creating a Postnuptial Agreement might differ due to the experiences and events that occur after the wedding.


Q: Is a Postnuptial Agreement legally binding? 

Answer: Yes, a properly drafted and executed Postnuptial Agreement is generally considered legally binding. However, for it to be enforceable, both parties must have entered into it voluntarily, must have had an opportunity to seek legal advice if they wished, and there should be full disclosure of assets. 

If any element of duress or fraud is involved, the Postnuptial Agreement could be deemed invalid by a court.


Q: Can a Postnuptial Agreement dictate child custody or child support? 

Answer: While a Postnuptial Agreement can address financial aspects related to children, such as education or health expenses, it typically cannot determine child custody or child support in a way that contravenes the best interests of the child. 

Courts have the final say in these matters, prioritizing the child’s well-being over contractual agreements.


Q: How can I ensure my Postnuptial Agreement is enforceable? 

Answer: To make sure your Postnuptial Agreement is enforceable, both parties should fully disclose their financial situations, have separate legal representation, and ensure the terms are fair and reasonable. 

The agreement should be in writing, signed by both parties, and preferably notarized. While it’s possible to draft a Postnuptial Agreement without a lawyer, seeking legal counsel ensures it meets jurisdictional requirements and stands up in court.