Guide to Postnuptial Agreements and Sample Postnup
Whether you're just considering a postnuptial agreement or have already decided to move forward with one, it's important to understand the basics. This guide provides an overview of what postnuptial agreements are and what they can do for you and your spouse. We'll also cover some key things to keep in mind as you go through the process.
What is a postnuptial agreement?
A postnuptial agreement is a contract created by a married couple that outlines each spouse's rights and responsibilities in the event of a divorce. While many couples enter into prenuptial agreements before getting married, a postnuptial agreement differs from a prenup in that it can be created at any point during the marriage.
Why would I need a postnup?
There are several reasons couples might want to create a postnuptial agreement. Some reasons stem from the desire for fair property division. Maybe one spouse owns a business that they want to protect in the event of a divorce. Maybe the couple has come into a large sum of money, and they want to make sure it would be divided fairly if the marriage ends. Or maybe one spouse wishes to maintain ownership of a family heirloom, and they would like a legal document to help guarantee that.
In addition to the division of assets, people often seek postnup agreements for reasons pertaining to child support, child custody, and similar financial matters. For example, maybe one spouse has children from a previous marriage, and they want to make sure those children are provided for financially in the event of the spouse’s death.
What makes a postnuptial agreement legally valid?
Fair and full disclosure
Both spouses must provide full disclosure of their assets and debts to each other. This includes bank accounts, investment accounts, real estate holdings, retirement benefits, and any other items, assets, and debts.
Voluntary agreement
Both spouses must enter into the agreement willingly and without coercion from the other spouse. If one spouse threatens to divorce the other unless they sign the postnup, then the agreement may not be considered voluntary and could be voided by a court.
Fair and reasonable terms
The terms of the postnuptial agreement must be fair to both spouses at the time that it is signed. An example of an unfair term would be if one spouse agreed to waive all claims to spousal support in exchange for receiving less than half of the couple's marital assets.
Legal representation
Both spouses should have their own attorney review the postnup before signing it. This helps ensure that each spouse understands what they are agreeing to and that the terms are fair and reasonable.
Supporting documentation
Any assets or debts that are listed in the postnuptial agreement should have supporting documentation to back up the value stated in the contract. This could include bank statements, appraisal reports, and other evidence pertaining to the couple’s financial situation.
How can I create a legally valid postnup agreement?
Given the nuances of ensuring postnup validity – and the fact that this is a binding contract – it’s a good idea to get legal advice from a trusted legal advisor. You may choose a family law attorney or divorce lawyer, but you could also partner with Hello Divorce. We offer a cost-effective service to help you draft a legally valid postnup in your state.
Note that every state has slightly different rules on what makes a postnuptial agreement valid. Be sure to follow your state laws when drafting your agreement.
Sample postnuptial agreement
Want a visual of what your postnup will look like? Download our sample Florida postnuptial agreement here.
