While prenuptial agreements are signed before marriage, postnuptial agreements serve a similar purpose—but for couples who are already married. These contracts define how property and financial matters will be handled during marriage or in the event of divorce. Understanding postnuptial agreements helps couples protect their interests mid-marriage.
What Is a Postnuptial Agreement?
A postnuptial agreement is a contract between spouses signed after marriage that addresses property rights, debt responsibility, and financial arrangements. Like prenuptial agreements, postnups define what happens to assets if the marriage ends—whether through divorce or death.
Postnuptial agreements can address property division, spousal support waiver or amounts, debt allocation, inheritance rights, and management of finances during the marriage.
Why Couples Sign Postnups
Couples create postnuptial agreements for various reasons. Some wish they'd signed a prenup but didn't—a postnup accomplishes similar goals. Others experience changed circumstances that make an agreement desirable.
Common reasons include receiving an inheritance or gift and wanting to keep it separate, one spouse starting a business and wanting to define ownership, addressing financial conflicts or distrust in the marriage, reconciling after a separation and wanting clear terms, protecting assets after one spouse accumulates significant debt, or changes in state law affecting marital property rules.
Differences From Prenuptial Agreements
Postnuptial agreements face greater scrutiny than prenups because spouses already have legal duties to each other. Courts worry that one spouse may have pressured the other after marriage began.
Some states that readily enforce prenups are more skeptical of postnups. Additional safeguards may be required, such as independent counsel for each party, more extensive financial disclosure, and evidence the agreement is fundamentally fair.
Enforceability Requirements
Postnuptial agreements must generally meet these requirements to be enforceable: voluntary execution without duress or coercion, full and fair financial disclosure by both spouses, terms that aren't unconscionable or grossly unfair, proper execution (written, signed, often notarized), and absence of fraud.
Both spouses should have independent legal counsel. Agreements where one spouse provided the other's attorney, or where one spouse had no representation, face enforceability challenges.
What Postnups Cannot Do
Postnuptial agreements cannot determine child custody or child support—courts decide these based on the child's best interests at the time of divorce. Provisions attempting to limit child support are void.
Agreements cannot include terms that encourage divorce (like bonuses for divorcing) or provisions contrary to public policy. Courts may reject agreements that would leave one spouse destitute or unable to support themselves.
Financial Disclosure
Complete financial disclosure is essential. Each spouse must provide accurate information about assets, debts, income, and financial expectations. Hidden assets or misleading information can invalidate the entire agreement.
Attach financial schedules to the agreement documenting what each spouse owns and owes. Update these if circumstances change significantly.
Postnups for Reconciliation
Some couples use postnuptial agreements when reconciling after separation or infidelity. The agreement may include terms addressing the conduct that caused problems—like provisions about financial transparency, lifestyle clauses, or consequences for future infidelity.
Courts treat reconciliation agreements carefully. Provisions that seem punitive rather than protective may not be enforced.
State Law Variations
Postnuptial agreement enforcement varies significantly by state. Some states scrutinize them heavily; others treat them similarly to prenups. A few states have limited recognition. Know your state's standards before drafting.
Modification and Revocation
Postnuptial agreements can be modified or revoked by mutual consent of the spouses. Modifications should be in writing and executed with the same formalities as the original. Oral agreements to change terms are generally unenforceable.
When to Create a Postnup
Consider a postnuptial agreement when circumstances change in ways that affect marital finances. Don't wait until divorce is imminent—agreements signed under pressure of impending divorce face greater skepticism.
Getting Legal Help
Each spouse should have their own attorney. Postnuptial agreements involve waiving legal rights—understanding what you're giving up requires legal advice. An attorney ensures your interests are protected and the agreement is likely enforceable.