- What is a postnuptial agreement?
- Quick facts about postnups
- Issues covered in a postnup
- Benefits of involving a lawyer
- Benefits of doing it yourself
- Step-by-step guide to drafting a postnuptial agreement
- Self-drafted vs. lawyer-drafted prenups
- FAQ
- How to Write a Postnuptial Agreement
A postnuptial agreement is a legally binding contract married couples can sign that spells out how they would handle their finances and property in the event of a divorce. It can be a smart way to protect yourself and your assets if your marriage ends. And, contrary to popular belief, you don't necessarily need a lawyer or divorce attorney to draw one up.
Here's everything to know about postnups.
What is a postnuptial agreement?
Essentially, a postnup is a legal agreement where you can specify details about issues such as asset division, spousal support, and debt distribution in the event that a divorce should occur – all before any legal proceedings occur.
You can write a prenup yourself or with the help of a divorce attorney. To be valid and enforceable, you must follow any state requirements on the execution of the legal document.
Quick facts about postnups
It’s possible to create a postnuptial agreement without a lawyer
It is possible to create a postnuptial agreement without first hiring a lawyer. However, this doesn’t mean you’ll be navigating these waters alone. Many online resources and self-help tools are available to guide you through the process, including Hello Divorce.
Be aware that while this is possible, it’s not always ideal. The complexity of your financial situation and the intricacies of state laws might make professional advice a wise investment. If you’re unsure, you can schedule a free 15-minute phone call with us to ask questions.
You must understand your state laws first
Before you dive into creating a postnuptial agreement, you must familiarize yourself with the specific laws of your state. Each state has its own set of rules and requirements for postnuptial agreements.
As a quick guide, here are some common requirements:
- Written agreement: All states require postnuptial agreements to be in writing and signed by both parties.
- Voluntary: Both parties must enter the agreement willingly and without coercion.
- Full disclosure: Full and fair disclosure of all assets, liabilities, and income is generally required.
- Fairness: The agreement must not be egregiously unfair.
The agreement must be equitable and consensual
Each party must fully comprehend the implications of the agreement and consent to it voluntarily. The agreement must also be equitable. This doesn’t necessarily mean a 50/50 split, but it should be fair and reasonable considering the totality of circumstances.
If the agreement is one-sided or if there’s evidence of duress, fraud, or misrepresentation, a court is likely to toss it out.
Issues covered in a postnup
Property division
One of the most important aspects of any divorce is property division. Who gets the house? The car? The savings account?
With a postnup in place, you and your spouse can agree on how to divide your property in the event of divorce, which can save you a lot of time, money, and stress down the road.
Alimony and spousal support
If you or your spouse ever find yourselves in a position where one of you is unable to work after a divorce, a postnup can clarify how to handle financial support. Without a postnup, such spousal support decisions might have to be made by a judge who may not make the best ruling for your financial situation.
Debt repayment
Do you and your spouse carry any joint debt? If so, a postnup can detail who would be responsible for repaying that debt in a divorce settlement. This can be especially important if one spouse has bad credit or is otherwise financially irresponsible.
Protecting business assets
If you or your spouse own a business, a postnup can help protect those assets in the event of divorce or death. Without a postnup, businesses often become embroiled in lengthy and costly legal battles that siphon valuable resources you could otherwise have used to keep the business running smoothly.
Benefits of involving a lawyer
There are benefits to using a lawyer to create your postnup:
- A lawyer can make sure your agreement is legal and enforceable.
- If you have complex financial circumstances (e.g., multiple properties or businesses), a lawyer’s expertise can save you time and stress.
- Involving a law firm may make it easier to enforce the agreement in court.
Hiring a lawyer inevitably costs more than creating a postnup yourself. However, an incorrectly formatted postnup could actually create more legal headaches if you get a divorce.
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Benefits of doing it yourself
Many couples assume they must hire a divorce lawyer to draw up a postnup, but this isn't necessarily true. If you and your spouse are on good terms and can communicate openly about your finances, you may be able to create the agreement yourselves.
The main difference and largest advantage of writing your own postnup is saving money. In the simplest of situations, you could draft a postnup using a template found online.
It’s also faster to write your own postnup with your spouse than it is to work with a lawyer. In fact, you may be able to do it over a weekend. (Just make sure you address every possible asset and debt.)
Step-by-step guide to drafting a postnuptial agreement
Step 1: Understand the purpose
Before you start drafting, grasp why you’re doing this. A postnuptial agreement is not about distrust or predicting doom. It’s about ensuring clarity and mutual understanding in your financial affairs, and setting clear expectations for the future.
Step 2: Itemize your assets and liabilities
Make a comprehensive list of both spouses’ assets and liabilities. This includes property, investments, bank accounts, retirement funds, and debts. Full disclosure is a cornerstone of any valid postnup.
Step 3: Determine how property will be divided
Decide what happens to those assets and liabilities should the marriage end. Who gets the house? How are retirement funds split? Who assumes credit card debt? Consider any family heirlooms as well. Think beyond just the big-ticket items.
Step 4: Consider spousal support
If the marriage ends, will one spouse provide financial support to the other? If so, how much and for how long? Clarity is key here.
Step 5: Put it in writing
All states require postnuptial agreements to be in writing and signed by both parties. So, take your decisions and craft a clear, comprehensive document. Be specific. Vague language can lead to disputes down the line.
Checklist for legal validity:
- Written agreement
- Full disclosure
- Fairness
- Voluntary
The DIY postnup approach is not recommended for complex marriages with substantial marital property, real estate, and assets. If you have a house, a couple of cars, and maybe a vacation home or rental property, consider using a divorce attorney to handle your postnup drafting.
Can you really write a postnup without a lawyer?
Yes, you can. However, this doesn’t mean you should, at least not without understanding the potential risks and complexities involved.
Writing a postnuptial agreement isn’t like writing a grocery list. It’s a legal document with serious implications for your future. A misstep here isn’t just inconvenient; it’s costly.
One of the most important things to remember is that a postnup must be voluntary. That means no pressure, no coercion, and no duress. Both parties need to enter the agreement willingly. If there’s even a whiff of coercion, a court may toss out the agreement.
Another non-negotiable condition is full disclosure. Both parties need to lay their financial cards on the table: assets, debts, income, everything. If it turns out one party was hiding a secret bank account, the agreement could be invalidated.
Self-drafted vs. lawyer-drafted prenups
Cost
A self-drafted postnup is, unsurprisingly, the cheaper option. Online resources and free templates abound. But cheap doesn’t always equate to value. If you mess up, the financial ramifications could far outstrip what you would have paid a lawyer.
Hiring a lawyer isn’t a bargain option, however. Depending on your location and the complexity of your situation, you could be looking at several thousand dollars. Yet this is an investment in your financial future. You’re paying for expertise, peace of mind, and a document that will stand up in court.
Time
If time is of the essence, a self-drafted postnuptial agreement can be faster. No need to schedule appointments or wait for a lawyer’s availability. You set the pace.
But let’s not forget the time it takes to research and understand your state’s laws, gather all the financial information, and draft a comprehensive and clear document. A lawyer can streamline this process considerably.
Enforceability
The enforceability of a postnup hinges on its legality and fairness. A self-drafted agreement runs the risk of missing essential legal requirements, being unfairly biased, or leaving room for interpretation. All of these are red flags to a court.
A lawyer-drafted agreement should tick all the legal boxes and stand a better chance of holding up in court. Lawyers know the ins and outs of family law. They understand how to write a fair, balanced agreement that courts are unlikely to challenge.
FAQ about postnuptial agreements
Do postnuptial agreements hold up in court?
In most cases, yes, postnups hold up in court. However, there are instances where a court may not enforce a postnuptial agreement. For example, if the agreement was not entered into voluntarily or is unfair to one party, a court may choose not to enforce the agreement.
Can anything be included in a postnuptial agreement?
Most things can be included in a postnuptial agreement as long as both parties agree and the terms are not illegal. Common terms included in postnuptial agreements include how property would be divided in a divorce, what would happen to business ownership, and details about spousal support payments.
Who should have a postnuptial agreement?
Any married couple could potentially benefit from having a postnuptial agreement since the divorce rate is so high and the division of assets can be such a touchy subject in divorce. However, they are especially beneficial for couples who own considerable assets or who have been married previously.
How much does it cost to create a postnuptial agreement?
Postnup agreements vary in price depending on the complexity of the agreement and the state you live in. On average, you can expect to pay between $500 and $5,000 to have an attorney draft a postnuptial agreement.
How long does it take to create a postnuptial agreement?
It typically takes anywhere from one week to one month to create a postnup agreement. The more complex your situation is, the more time you’ll need to set aside for it.
Do both parties need an attorney?
It’s often recommended that both parties have an attorney when creating a postnuptial agreement, but it’s not required. If both parties do not have an attorney, it is vital that each person fully understands the terms before signing.
Can Hello Divorce help me create a postnuptial agreement?
Yes. Hello Divorce attorney preparation of postnuptial agreements. Five hours of service is available to you for a flat rate, which you can read more about here. You can book time with one of our attorneys and meet via phone or Zoom. Before you meet with the attorney, please take the time to gather your financial documents and talk with your spouse about the agreements you’d like to finalize.
A postnup is more than just a piece of paper. It’s a roadmap, a safety net, and a legal contract that outlines each spouse’s rights and responsibilities in the event of a divorce. At Hello Divorce, we believe in making family planning services affordable and accessible. Our resources are decided to save you time, money, and stress.
HelloDivorce provides legal assistance drafting postnuptial agreements for married couples. Click here to learn more.
More FAQ about post-nuptial agreements
What is a postnuptial agreement and how is it different from a prenup?
A postnup is a written contract spouses sign after the wedding that sets financial rights and responsibilities if you separate or divorce. A prenup is signed before the wedding; the topics are similar.
Are postnuptial agreements enforceable?
Often yes, when they meet state requirements: full and fair financial disclosure, voluntariness (no pressure), fairness when signed, and proper formalities like notarization or witnesses if required. Courts can reject terms that are extremely one-sided or violate public policy.
When should we consider a postnup?
Useful moments include starting or selling a business, receiving an inheritance, buying or refinancing a home, major debt changes, moving states, or reconciling after a separation.
Do we need separate lawyers?
Not always required, but highly recommended. Independent advice helps ensure each spouse understands the rights they are changing and supports enforceability.
What disclosures are required?
Each spouse should provide a written snapshot of income, assets, debts, and expected changes like vesting or bonuses. Attach or reference current statements.
What can’t we decide in a postnup?
You generally cannot lock in child custody or child support ahead of time; courts retain authority over child issues. Terms that waive disclosure, encourage divorce, or are unconscionable may not be enforced.
Can a postnup address spousal support?
Yes, but enforceability varies by state and by fairness when enforced. Get legal advice before finalizing support waivers or formulas.
How do community property and equitable distribution states affect a postnup?
In community property states, you can opt out of default rules by clearly classifying separate vs. community assets and income. In equitable distribution states, you can agree to a division framework that courts generally respect if the agreement is valid.
How should we execute and store the postnup?
Follow your state’s signing rules. Provide each spouse with a fully signed copy, store originals safely, and update beneficiaries and titles to match.
Can we change it later?
Yes. Amend or revoke with a signed writing that follows your state’s formalities. Many couples include a review clause for major life events.
How to Write a Postnuptial Agreement
Clarify goals and scope.
Decide what you want the agreement to cover: classification of property and income, handling of debts, home or business terms, spousal support, inheritances and gifts, and what happens at separation or death.
Check your state’s rules and formalities.
Confirm requirements for disclosure, notarization or witnesses, any consideration rules, and whether independent counsel is advisable or required.
Prepare full financial disclosures.
Exchange written lists of assets, debts, income, and expected changes. Attach schedules or reference current statements and include a statement that each of you relied on these disclosures.
Draft the core terms.
Define separate versus marital/community property, how future earnings and appreciation are treated, responsibility for debts, any spousal support terms, and procedures for updating titles and beneficiary designations.
Add fairness and process clauses.
Include voluntariness acknowledgments, opportunity for independent counsel, severability, governing law, a dispute-resolution path (like mediation first), amendment/review timing, and a note that child issues follow state law.
Review and legal check.
Read carefully and strongly consider separate counsel for advice on rights and enforceability before signing.
Execute correctly.
Sign with the formalities your state requires (notary and/or witnesses). Make sure each spouse gets a fully executed copy.
Implement and maintain.
Update accounts, titles, and beneficiary forms so reality matches the agreement. Store originals securely and review after major life changes.
