What Should You Include in a Postnuptial Agreement?

A postnuptial agreement should include certain provisions – notably property, assets, debt division, and spousal support. When a couple gets married, the last thing they want to think about is divorce or death. Still, both are realistic possibilities, and spouses may want to feel prepared for either occurrence.

What Is a Postnuptial Agreement?

Many are familiar with prenuptial agreements but may be unaware that postnuptial agreements also exist.

A postnuptial agreement, also referred to as a postnup, serves many purposes, the most important being a detailed description of the division of assets should the couple divorce or a spouse pass away.

Prenuptial and postnuptial agreements are essentially the same. The main difference between them is that couples sign prenuptial agreements before they marry. They sign and place into effect postnuptial agreements after they have already legally married.

What Are the Benefits of a Postnuptial Agreement?

Postnuptial agreements are for everyone, but not every couple feels they need one. A postnup may be beneficial or necessary in certain situations, including these:

• One or both spouses have extensive assets and property
• One or both spouses have a business
• Either spouse has children from a previous relationship

Many view postnuptial agreements as negative. Many spouses feel the spouse proposing the agreement is foreshadowing a divorce or going into the marriage with the wrong attitude. It is also common for spouses to believe the postnup only benefits the spouse wanting the agreement. However, this is not the case. 

Postnuptial agreements have many advantages for both spouses if done correctly. Here are some benefits of a postnup:

• Allows spouses to communicate clearly – When you’re going through the postnuptial process, you’ll have to communicate with your spouse regarding finances, assets, expectations for the future, children, etc. This can help start your marriage on the right foot.
• Provides a Roadmap for Asset Division – Dividing assets can be one of the trickiest parts of a divorce. Should the time ever come for you and your spouse to go your separate ways, a postnuptial agreement can help minimize contention. 
• Protects Assets – Postnuptial agreements are especially helpful when one spouse (or their family) has many assets.
• Defines Expectations – Having a postnuptial agreement allows you and your spouse to set clear expectations regarding finances, spending, and future plans. 
• Provides Financial Stability for Your Children – A postnuptial agreement can help you protect your children financially in the future should there be a divorce.
• Simplifies the divorce process – While no one likes to talk about divorce, unfortunately, 50% of marriages end in divorce. A divorce can be challenging mentally and emotionally for both spouses and children. It is wise to have a postnup to make the process easier for everyone.

Things to Include in a Postnuptial Agreement

Because every couple is different, postnuptial agreements are tailored to their wants and needs. Generally, postnuptial agreements should include provisions for the following items:

Asset Division

Spouses often go into the marriage with property they acquired before getting married, and couples also acquire assets after getting married. In either case, the postnup can provide details regarding asset division should the couple divorce. 

Commonly, each spouse gets to keep the property they had before the marriage. For marital property, the spouses may decide to sell and split the profits or plan for which property each spouse can keep. 

There is great flexibility when deciding how to divide property and assets, and spouses can decide what is best for them and their situation. 

Debt Division 

Just as spouses may acquire property and assets, they will also acquire debt throughout the life of the marriage. Debt can include mortgages, credit cards, or other loans. 

In the event of a divorce, it is best to decide beforehand which spouse will take over what debts. Certain spouses may be in charge of specific debts, or the spouses may decide to pay off their marital debts equally. 

Couples often overlook debt distribution, but it can cause much friction should there be a divorce.

Spousal Support

Spousal support, or alimony, is one of the most important topics covered during a divorce. A postnup can include information for spousal support, including which spouse is entitled, how much, and for how long. In some cases, whether one spouse is entitled to spousal support can depend on certain details, including the spouses’ financial situation at the time of the divorce or the reason for the divorce.

Death of a Spouse 

Postnuptial agreements not only cover divorce, they can also provide provisions if one of the spouses pass away during the marriage. The postnup can include the same information above, but for a spouse’s death rather than a divorce. 

What’s Required To Make the Postnup Valid and Enforceable?

Postnuptial agreements are like contracts. For a postnuptial agreement to be valid and enforceable, it must meet specific requirements. These requirements exhibit the following traits:

• Voluntary – First and foremost, both spouses must enter into the postnuptial agreement voluntarily. If either enters into the postnuptial agreement under duress or coercion, it can be deemed null and void.
• Written – Valid postnuptial agreements can never be oral. 
• Full disclosure – During the postnuptial process, both spouses will need to make full and honest disclosures regarding finances and assets. Both parties must provide truthful information.
• Fair for both parties – Legally, postnuptial agreements cannot be unconscionable and one-sided. Many individuals become concerned here, thinking postnups only benefit the spouse proposing the agreement. These agreements can be advantageous to both parties.
• Signed – Both parties must sign and have the final agreement notarized. Some states may have additional requirements, such as witness signatures.

If the postnuptial agreement does not satisfy the legal requirements, it may be difficult if not impossible to enforce if need be.

How Long After Getting Married Can I Get a Postnup?

Spouses create postnuptial agreements after they have married. However, there is no set amount of time you have to get your postnup. A postnuptial agreement can be created at any time during a marriage.

Can Postnuptial Agreements Be Modified or Revoked?

Yes. If you or your spouse feel changes are needed in your agreement, or you have both decided you no longer wish to have a postnup, you can modify or revoke the agreement. 

To amend or revoke your postnup, both parties must consent to the change or revocation. It cannot be done by one spouse alone. Typically, both spouses must sign a written agreement to either modify or revoke the postnuptial agreement. 

Do I Need a Lawyer for a Postnuptial Agreement?

You are not legally required to have a family lawyer create your postnuptial agreement. Nonetheless, it is best to have the guidance of an attorney to help ensure your postnup is fair, accurate, and enforceable to avoid future issues. Each spouse having their own lawyer helps ensure the agreement is fair for both parties.

An unbundled lawyer can provide guidance while helping keep costs low. An unbundled lawyer is like any traditional lawyer, they have the option to offer services in a different way. When you hire a regular attorney, they handle your matter from beginning to end; an unbundled lawyer only provides the services you request, like finalizing or reviewing an agreement you’ve already drafted.