What Is A Postnuptial Agreement? Definition & Examples

Christy Bieber has a JD from UCLA School of Law and began her career as a college instructor and textbook author. She has been writing full time for over a decade with a focus on making financial and legal topics understandable and fun. Her work has.

Christy Bieber, J.D. Contributor

Christy Bieber has a JD from UCLA School of Law and began her career as a college instructor and textbook author. She has been writing full time for over a decade with a focus on making financial and legal topics understandable and fun. Her work has.

Written By Christy Bieber, J.D. Contributor

Christy Bieber has a JD from UCLA School of Law and began her career as a college instructor and textbook author. She has been writing full time for over a decade with a focus on making financial and legal topics understandable and fun. Her work has.

Christy Bieber, J.D. Contributor

Christy Bieber has a JD from UCLA School of Law and began her career as a college instructor and textbook author. She has been writing full time for over a decade with a focus on making financial and legal topics understandable and fun. Her work has.

Contributor

Adam has resided at the intersection of legal and journalism for two decades. An award-winning journalist and legal strategist, he’s covered high-profile trials in Florida. After law school, Adam and spent two years clerking for a U.S. District Co.

Adam has resided at the intersection of legal and journalism for two decades. An award-winning journalist and legal strategist, he’s covered high-profile trials in Florida. After law school, Adam and spent two years clerking for a U.S. District Co.

Adam has resided at the intersection of legal and journalism for two decades. An award-winning journalist and legal strategist, he’s covered high-profile trials in Florida. After law school, Adam and spent two years clerking for a U.S. District Co.

Adam has resided at the intersection of legal and journalism for two decades. An award-winning journalist and legal strategist, he’s covered high-profile trials in Florida. After law school, Adam and spent two years clerking for a U.S. District Co.

Updated: Sep 8, 2023, 4:29am

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What Is A Postnuptial Agreement? Definition & Examples

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Many people have heard of premarital agreements or prenuptial agreements that couples enter into before marriage to dictate what will happen in a divorce. A prenup isn’t the only kind of contract that can do that, though. Couples can also choose to create a postnuptial agreement.

But, what is a postnuptial agreement? This guide explains how this type of contract works, when you may want to create a postnup and what a postnuptial agreement should contain.

A postnuptial agreement is a written contract that couples can choose to enter into after they are legally married. The agreement addresses legal issues that would arise in the event of a divorce or in the event either spouse passes away.

A “postnup” is similar to a prenuptial agreement or “prenup” in that it helps to simplify a future divorce process and protect the financial interests of each spouse in the event the marriage ends.

The main difference is that a prenuptial agreement is created before the marriage while a postnup is created during the marriage—sometimes years or decades after the wedding.

Why Do You Need a Postnuptial Agreement?

Couples may create a postnuptial agreement for many reasons. Some of the possible purposes of drafting this kind of contract include the following:

You may also want to create a postnuptial agreement in an effort to help keep a relationship intact. For example, if one spouse was unfaithful and wants to show their commitment to restoring the marriage, the couple could create an agreement that would provide for a more favorable divorce settlement for the other spouse in the event of future infidelity.

What Should Be Included in a Postnuptial Agreement?

A postnuptial agreement should address most of the key issues that would arise in a divorce. Some of the items that a couple should include in their contract include the following:

The postnuptial agreement may also contain other clauses that the parties agree upon regarding how a divorce will unfold.

The contract should always be in writing in order for it to be considered valid and enforceable. Each spouse should also have independent legal counsel, the opportunity to review the document before signing and receive a financial disclosure prior to signing.

What Shouldn't Be Included in a Postnup

While postnuptial agreements can address many of the issues likely to arise in divorce, it cannot necessarily address all of them.

Specifically, clauses related to child custody and support are not enforceable in most states. Parents cannot waive a child’s support rights, and custody is decided not based on what the couple says in a private postnuptial contract created in advance but instead based on what is in the best interests of the child at the time a divorce occurs.

Provisions contrary to public policy and clauses intended to regulate routine aspects of a marital relationship may also not be enforceable if they are included in a postnuptial agreement.

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Is a Postnuptial Agreement Enforceable?

A postnuptial agreement is enforceable if both parties voluntarily signed a written agreement. However, there are circumstances in which a court might decline to enforce the contract in the event of a divorce. This can occur in the following situations:

Provisions that are against public policy also will not be enforced.

How Can You Write a Postnuptial Agreement?

The best way to write a postnuptial agreement is to get help from an experienced attorney who can provide you with assistance drafting an enforceable contract that protects your interests. You should contact a family law attorney as soon as you believe drafting a postnup is right for you.

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Frequently Asked Questions (FAQs)

What is the purpose of a postnuptial agreement?

A postnuptial agreement allows you to make an advance written plan about what would happen in the event of a divorce or the death of one spouse. This type of agreement is written after you are married, as opposed to a prenuptial agreement drafted prior to tying the knot. If you suspect you may separate in the future or wish to put a contract in place protecting your rights in case something goes wrong in your marriage, a postnup can make that happen.

Is a postnuptial agreement a good idea?

A postnuptial agreement is a good idea in certain circumstances. It helps you to resolve issues in advance that could arise later on if you and your spouse divorce. It may be easier to find a compromise on key issues related to spousal support and property division before your marriage breaks down. This type of contract can also be used in special circumstances, such as to protect a spouse who has decided to stay home with children and step off the career track.

Are postnuptial agreements legally binding?

Postnuptial agreements are legally binding as long as they comply with certain requirements. They must be in writing and signed by both parties, and both people who sign must have had the opportunity to review the documents carefully. In some cases, these contracts are enforced only if each spouse had separate legal counsel. Couples must also make financial disclosures and avoid including provisions against public policy, such as those waiving child support.

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Christy Bieber has a JD from UCLA School of Law and began her career as a college instructor and textbook author. She has been writing full time for over a decade with a focus on making financial and legal topics understandable and fun. Her work has appeared on Forbes, CNN Underscored Money, Investopedia, Credit Karma, The Balance, USA Today, and Yahoo Finance, among others.

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