What Is a Postnuptial Agreement?

Many married couples never talk about prenuptial agreements or postnuptial agreements. But making a legal agreement before or during your marriage can have several benefits. If you divorce, these agreements can ensure each partner gets to keep specific property. A postnup can also address financial disputes before they become a point of conflict.

Marital property laws vary by state. If you have questions about postnuptial agreements after getting married, a local divorce attorney can explain your legal options. Talk to a local family law attorney for legal advice.

Who Needs a Postnuptial Agreement?

A postnuptial agreement is a legal contract addressing how a couple will handle property division, assets, and spousal support after a divorce or separation. Most people are familiar with prenuptial agreements, or prenups. A prenup is an agreement that you sign before getting married. A postnup is an agreement that you make during the marriage.

Financial disputes are a common reason for marital discord. It often leads to divorce. Agreeing on how property will be divided in a potential divorce can relieve some of this stress. Postnups can also ensure one spouse will receive a certain amount of alimony or spousal support in a separation. Division of assets can address family business assets, personal property, and jewelry or collectibles.

Many couples consider a prenup or postnup after issues from a previous relationship. A partner may have lost personal property that was important to them or had to take on marital debts and liabilities from their partner. A postnup can also help provide for children from a previous marriage.

What Happens When a Marriage Ends Without a Postnuptial Agreement?

Without a prenup or postnup, the family court determines how to divide marital assets. States are generally separated into community property or equitable distribution states, which can determine how to divide assets in divorce proceedings.

In community property states, financial assets acquired during the marriage are marital property. Each spouse has an equal claim to property. A spouse’s property, which they had before getting married, remains separate property. Property from a previous marriage is generally part of the separate spouse’s assets. If a couple opens a new bank account together, the personal finance assets would be community property.

In equitable distribution states, the court divides up the property fairly. The court considers several factors, including the length of the marriage and economic circumstances.

Can You Get a Postnup After Marriage?

States will generally enforce a postnuptial agreement entered into after marriage. But divorce courts will not enforce a postnuptial agreement or prenup if it’s not signed voluntarily and with full and fair disclosure. Depending on state law, a valid postnuptial agreement may require signing by a witness or notary public.

Generally, a postnup must be executed:

• Voluntarily
• In writing
• In good faith
• Without terms that are unconscionable or against public policy

Unconscionable means the terms of the agreement aren’t extremely unfair. A court will also refuse to enforce terms or conditions that are against the law.

Does a Postnup Cover Child Support and Child Custody?

In most states, a postnup agreement can’t cover child support or child custody. State law determines child support payments. Child support ensures that the child gets the financial support necessary from both parents. You can’t sign away your obligation to support your child in a post-marital agreement. A family law court determines child custody and support based on the best interests of the child.

Can You Get a Postnuptial Agreement for Pets?

Pet ownership is an increasing issue in separations and divorces. In family law, pet ownership falls under property division. Postnuptial agreements for pets—or pet-nups—can cover who gets to keep a family pet in a divorce. You can make an agreement for pet custody and support.

Do You Need a Lawyer for a Postnup?

Most couples can make a valid postnuptial legal contract in the event of a divorce. Check with your state legal requirements to ensure the postnup is valid and enforceable. An experienced family law attorney can draft a postnup and explain all the legal consequences. If anything changes during the marriage, your lawyer can also revise and update your postnup.

Contact a family law lawyer to talk about how a postnup can give you peace of mind over your property interests.