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Create a Postnuptial agreement

A postnuptial agreement allows couples who are already married to decide how to divide their assets if they get divorced.

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Learn more about postnuptial agreements
A postnuptial agreement is similar to a prenuptial agreement except that the couple drafts and signs the document after they get
married. Just like a prenup, a postnuptial agreement is a contract couples use to agree in advance on how their affairs, debts, and assets would be settled in the event of separation or divorce.

Other names
A postnuptial agreement can have several other names including:

  • Postnup
  • Postnuptial contract
  • Marital contract

Who should use this form?
Postnuptial agreements are becoming more common as a general planning tool for couples who do not want to risk leaving the terms under which they would settle a potential divorce or separation in the hands of the state where they live. Postnuptial agreements can be complex and are typically governed by state law. It is important to think about what you want to accomplish with your agreement, and to understand your state’s rules around what makes a postnup enforceable, before drafting and signing your agreement.

Many couples choose to have their postnuptial agreement drafted by an experienced family law or estate planning attorney. If you choose to draft a postnup on your own, keep in mind that many states have laws requiring that each party sign the agreement voluntarily, and with a full understanding of the terms. The best way to ensure enforceability of a postnup is to have the agreement reviewed by independent counsel before you sign.

What to include in a postnuptial agreement
A postnuptial agreement includes disclosures by each party of all assets and debts, and details on how these will be divided in the event of separation or divorce. The agreement usually includes a definition of what the couple will keep as separate property, and what rights they intend to waive such as:

  • The right to share in each other’s estate upon either spouse’s death
  • To alimony, or spousal maintenanceTo each other’s separate property, or increase in value of that property
  • To other claims they might have had the right to make under their state’s divorce laws

Disclosures should include both real property and financial assets:

  • Property disclosures should include physical property such as cars, jewelry, and other items of value; Real property such as real estate and land.
  • Financial assets can include cash, bonds, stocks, retirement accounts, and other investments.

Keep in mind that it is best to avoid provisions around child custody and child support. These are issues that the court will potentially have some say in, and the outcome will always be decided based on what the court thinks is right for the children at the time custody and support is needed.

Your agreement can include provisions for property acquired in the future. You might buy a house, new cars, vacation homes, and other property during your marriage, and you can use your postnup to decide how to split these in the event of separation or divorce.

Finally, your agreement should address debts and liabilities. If you have $20,000 in credit card debt, for instance, who will pay the bill and make the creditor whole? The same goes for mortgages, car notes, and other debts. If you start a business separately or together, information about the venture belongs in this agreement too.

Next steps
Your agreement becomes legal only when you and your spouse sign the document. Depending on state rules, you might also be required to get the agreement notarized and witnessed. File a copy with your lawyer, and make sure you and your spouse also have a copy.

You might need to update your agreement as you add to your family, buy property, or experience other life changes.

Additionally, state laws about post- and prenuptial agreements vary. If you move to another state or country, you might have to create a new postnuptial agreement to comply with local laws.
Important Terms: