Can You Write Your Own Postnuptial Agreement?

The Marble Team

Can You Write Your Own Postnuptial Agreement?

Family Law
| 5 min
5 minutes

Postnups offer married couples a range of benefits. These documents can be used to help guarantee financial security, allow one party to hold on to certain assets, resolve any potential inheritance issues, and facilitate the process of divorce. 

Some couples balk at the idea of postnups, but their growing popularity is proof that many people now see them as a valuable and sensible choice. Despite the many similarities, postnups do have some fundamental differences to prenups.

There’s nothing to stop you from writing your own postnup, but you should tread very carefully if you do so. It’s just so easy to make a mistake. You might forget to include something, fail to futureproof your agreement, or waive rights unnecessarily. All of those scenarios could make your agreement null and void or lead to unintended consequences.

Divorce law in general, and postnups in particular, can be a minefield. Accordingly, we’ve outlined the basics for couples seeking to write their own postnuptial agreement. We’ll show you how to do it, what to include, common mistakes to avoid, and how the postnup process works if you do divorce eventually. Most importantly, we’ll explain what you need to do to ensure that your postnup is legal, valid, and enforceable.

Who Can Create Postnuptial Agreements?

The laws on postnuptial agreements vary significantly from state to state, so before you do anything, check that they’re legal where you live. Postnups are unlawful in Ohio, for example. It’s also important to note that certain states have rules about what you can and can’t include in a postnuptial agreement.

Beyond that, any married couple can draw up a postnup. You can do so the day after you marry or 20 years into your marriage. You can apply the agreement retroactively or allow it to kick in after a specific time. Furthermore, you can also insert a sunset clause that means it expires on a future date. 

Every marriage is different, but if you and your partner want a postnup, you have the flexibility to formalize a legal agreement that matches your exact needs.

What Makes A Postnuptial Agreement Legally Binding?

In some instances, an oral contract or agreement can be legally enforced. However, that’s not the case with a postnup. In general, for it to be legally binding, a postnup must be: (1) written down, (2) entered into voluntarily, with no coercion, (3) subject to full and honest disclosure of assets and liabilities by both parties, (4) fair and reasonable, and (5) signed, witnessed, notarized, or endorsed by the courts, depending on your state’s law.

What Can Be Included In A Postnuptial Agreement? 

Most postnups are about financial matters: who gets to keep what in the event of a separation, the amount of alimony and child support, and ensuring that children from a previous marriage receive their fair share. As with prenups, postnups can be a good option where one partner is significantly wealthier and wants to ring-fence certain assets.

Postnups aren’t just about finances, however. You can also insert a post-divorce confidentiality clause, for example, or include revised conditions if one partner takes time off work to raise a child.

What Separates a Postnuptial Agreement From A Typical Divorce?

A divorce is a legal reality, whereas a postnup may never be used. In a divorce, couples must negotiate a settlement covering the division of assets, spousal support, and, if they have kids, child custody and maintenance arrangements. They also need to decide what counts as separate property (pre-marital assets, gifts, and inheritances) and community property (joint marital assets). Couples can either negotiate directly or via mediation, but if they can’t agree, ultimately, the courts will decide.

In principle, a postnup resolves most of these issues ahead of time, making the divorce process a whole lot easier, faster, and smoother. However, one party may challenge the legality of the postnup, which is why it’s so important to get it right in the first place. That said, how successful one partner might be with any challenge depends on the state where you live and the robustness of your agreement.

How A Postnuptial Agreement Can Make The Divorce Process Easier

A postnuptial agreement can make the divorce process easier because much of the heavy lifting has already been done. Divorce is often a highly charged and emotional time, meaning it can be challenging to think clearly and rationally. A postnup can reduce the stress of the process because many key decisions have already been resolved apart from the divorce itself.

How A Family Lawyer Can Help With Your Postnuptial Needs

A postnup is a legal document that can have profound and long-lasting consequences on your life. That’s why it’s important to ensure you get it right. Divorce law is a highly complex area, but an experienced family lawyer can help you cut to the chase in determining whether you need a prenup, what to include, and how to ensure it complies with the law.

Many states require you to use the services of an attorney for a postnup, and with good reason. By employing a professional attorney, you can ensure that everything in your postnuptial agreement is in order and legally enforceable.

Bottom Line

A postnup is essentially a contract between two people. For a contract to work, it needs to be legal, valid, and enforceable. Which means that getting a lawyer to draw up and validate your postnup is the safest option. Indeed, in many states, you’re legally obliged to do just that.

5 minutes
Dec 30, 2020
The Marble Team