Marriage is meant to be a lifelong commitment. But although divorce rates in the United States have steadily declined over the last two decades, some marriages will inevitably reach their end.
Even if you feel your marriage is on solid ground and the thought of divorce seems out of the question, having a plan in place may help you prepare for the unexpected and reduce potential time, expense and stress in the future. This is where a postnuptial agreement may come into play.
Use our guide below to learn more about postnuptial agreements, their advantages and disadvantages, how to create one and when to consider hiring an attorney to help.
Postnuptial agreement defined
A postnuptial agreement, commonly referred to as a postnup, is a legal contract between two spouses. It details their expectations and mutual agreements regarding certain financial decisions that will take effect in the event of a divorce.
Postnuptial agreements are similar to prenuptial agreements (or prenups), with one key distinction: Whereas a prenup is executed before the date of marriage, a postnup only may be entered into after the date of marriage.
What should be included in a postnuptial agreement
Items that are typically addressed in a postnuptial agreement include:
- What will be considered separate property and marital property in the case of a divorce
- How marital and separate property will be divided
- How debts and other liabilities will be allocated
- Division of ownership and management of any business interests
- How inheritance rights and certain estate planning matters will be handled
- Terms and conditions for any spousal maintenance or support (sometimes referred to as “alimony”)
Items not included in a postnuptial agreement
Even if both parties agree, certain topics may not be included in a postnuptial agreement. These topics concern rights that can’t be contracted away or are against public policy. For example, postnups are generally not permitted to address items regarding:
- Child custody and visitation
- Terms and conditions of any child support
- Household chores
- Regulation of the employment of either spouse
- Terms that would violate law or public policy
Any such topics will likely be struck down as void and unenforceable. That said, this list isn’t exhaustive. Check the laws of your jurisdiction to determine whether and to what extent other topics may be prohibited.
Postnuptial agreement requirements
In order to be valid and enforceable, a postnuptial agreement must meet certain requirements. These differ from state to state but generally include the following:
- The agreement must be entered into after the date of marriage.
- Both parties must provide a complete, fair and accurate disclosure of their respective assets, liabilities, income and other financial information prior to executing the postnup.
- Both parties must voluntarily enter into the agreement without the existence of any coercion, duress or undue influence.
- The agreement may not be grossly one-sided and may not include any unconscionable provisions.
- The agreement must be in writing and signed by both parties. Verbal agreements won’t be enforceable.
Pros and cons of a postnup
Although there are many advantages of a postnup, there are certain drawbacks to be aware of as well. Here are some pros and cons to consider before pursuing a postnup.
Benefits of a postnup
- Asset protection: A postnup provides married couples with a way to protect themselves and their financial interests in the event of a divorce.
- Clarity: A postnuptial agreement provides the parties clarity and transparency about each spouse’s expectations and what will transpire in the event of divorce.
- Customization: A postnup allows the parties to tailor their agreement to suit their particular financial situation, goals and needs.
- Stronger bond: In many cases, the process of creating a postnuptial agreement may improve communication and, in turn, strengthen the marriage.
- Dispute reduction: A comprehensive, detailed and well-crafted postnuptial agreement may reduce the likelihood of costly and time-consuming disputes and litigation in the event the couple ultimately decides to terminate their marriage.
Disadvantages of a postnup
- Challenging conversations: Because a valid postnup requires full financial disclosure, this may lead to awkward and uncomfortable conversations between the parties.
- Limited scope: Postnups may only address certain financial topics, so if your goal is to reach an agreement on issues like child custody, a postnuptial agreement may not be the right option for you and your spouse.
- Enforcement concerns: Compared to prenups, postnuptial agreements may face more scrutiny, especially where there are significant financial disparities or power imbalances. This can make enforcement a concern for some people.
- Cost: If you choose to seek the assistance of legal counsel in creating your postnup, you’ll likely pay a fee for their service.
How can a postnuptial agreement lawyer help
Although you aren’t legally required to hire an attorney, doing so may be valuable. For example, an attorney may assist you by:
- Providing legal expertise so you have a better understanding of your legal rights, obligations and options
- Drafting the agreement and making any necessary revisions throughout the process
- Helping to ensure compliance with local laws and regulations
- Advocating on your behalf in any potential negotiations with your spouse
- Providing independent legal counsel to reduce the possibility of coercion or undue influence by your spouse
- Protecting your interests until a final agreement is reached
When to speak with an attorney
Because a postnuptial agreement is a formal legal contract, it’s important to make sure it’s drafted properly and in compliance with all applicable requirements. If you’re uncertain how to get started or whether a postnuptial agreement makes sense for you and your spouse, consider speaking with an attorney. An experienced family law and postnup lawyer may help you discuss your options, create a comprehensive agreement and protect your rights and interests every step along the way.c
Sofie is a writer. She lives in Brooklyn.
