What Can Be Included In A Postnuptial Agreement?

The Marble Team

What Can Be Included In A Postnuptial Agreement?

Family Law
| 5 min
8 minutes

Prenuptial agreements have been around much longer than their postnuptial equivalent, but postnups have been growing in popularity in recent times. Certainly, postnups aren’t for everyone, but they can be handy and beneficial under certain conditions.

Couples choosing a postnup do so for several reasons: for security, to reflect a change in circumstances, as a financial precaution, or to copper-fasten certain inheritances. Some couples also draw up a postnup for the simple reason that they didn’t have time to draw up a formal agreement before they married.

If you’re considering a postnup, but aren’t sure how they work, then read on. In plain English, we’ll explain what can be included (and what can’t), the key benefits, the main differences between a postnup and a prenup, and how to ensure that your agreement is entirely legal. Keep reading to cover the crucial details you need to know.

The Differences Between A Prenup and a Postnup

Prenups and postnups actually have more in common than you might think. Essentially, they’re both a legal agreement about what happens when a marriage is dissolved. However, there are three fundamental differences between them:

  • Timing: a prenup only becomes valid after you marry, whereas a postnup can be signed at any time. You can also backdate a postnup if you so desire or apply a future date.
  • Coverage: a prenup typically covers assets that you owned before marriage. Compare that to a postnup, which can still include pre-marital property but may also protect assets gained since you were married.
  • Validity: because prenups have been around for longer, courts generally accept that they’re fully valid from the marriage date. However, depending on where you live, you may need to get your postnup validated by the courts before it’s recognized.

What Kind of Assets Are Included In a Postnup?

Most couples use a postnup to cover the division of specific property and assets, spousal support (alimony), and debt management. It’s also common to include property that you owned separately before your marriage. But you need to be careful what you put in your postnup because some states have specific exclusions. In California, for example, conditions around child custody and support are off-limits.

Alongside financial provisions, you can also include other conditions in a postnup, like the religion of your newborn children.

How Do Postnups Work Alongside The Divorce Process?

Most couples who sign up for a postnup hope that they’ll never have to use it. But if the worst happens, then the postnup kicks in and forms an integral part of the separation process.

One of the reasons people have a postnup is because it greatly facilitates the divorce process. There’s no need to wrangle over the division of property or the amount of spousal support because everyone has already agreed to the outcome.

Once the wheels start turning, you may take issue with some of the conditions in your postnup. However, you may find it difficult - if not impossible - to challenge a legal document that bears your signature.

What Makes a Postnup Legally Binding?

The laws on postnups vary state by state, so always check local legislation before proceeding. You may find that postnups aren’t even legal in your jurisdiction. 

In those states that allow postnups, some general rules and conditions apply to make them legally binding. First, any agreement must be written down - verbal agreements aren’t valid. Next, both parties must fully understand what they’re signing up to, with no coercion from either side.

The spouses are expected to make an honest disclosure about their assets, property, income, and debts. The agreement must also be fair and reasonable. If it’s not, it won’t be enforceable.

Finally, a postnup must be in line with state laws. That means you may need to get your signatures witnessed or notarized or have your agreement formally endorsed by the courts.

The Key Reasons You’d Benefit From a Postnup

There are many excellent reasons for drawing up a postnup. If you have any concerns about security in your marriage - either emotional or financial - a postnup can be a great way to allay those fears. It may also be relevant if either of you has children from a previous marriage. For example, you could use a postnup to make a specific provision that leaves your original family home to your kids, rather than your new spouse having any title on the property.

Couples with postnups often use them to protect their separate assets and to ensure that they hang on to them if the marriage fails. This is especially the case if one partner is significantly wealthier coming into the marriage.

But quite possibly the greatest single advantage of a postnup is that if the couple does divorce, most, if not all, of the big decisions have already been cemented. This makes the entire separation process much quicker, easier, and less expensive.

How A Family Lawyer Can Help You Establish a Postnup Agreement

If you and your spouse have decided to create a postnup, it’s crucial to make sure that your agreement is legally binding. After all, why go to the effort and expense of building a postnuptial agreement if the courts are going to throw it out?

The best way to ensure that your postnup is legally watertight is to engage the services of a specialist family lawyer. A trusted attorney will ensure that your agreement’s fully valid and legal, giving you total peace of mind and security.

Bottom Line

The growing popularity of postnups is proof of their value. In a changing world where COVID-19 may have a greater impact on divorce rates, a postnup can be a sensible, cost-effective, and convenient solution. Just make sure you get yours checked by a lawyer to confirm that it’s completely valid and legal.

8 minutes
Dec 30, 2020
The Marble Team