Practice Area
Postnuptial Agreements
Protecting Your Marriage and Your Future
Defining financial terms during marriage to protect both spouses.
Overview
Understanding Postnuptial Agreements
A postnuptial agreement is a legal contract entered into by spouses after they are already married. Like a prenuptial agreement, it defines how assets, debts, and financial responsibilities will be handled in the event of divorce, separation, or death. While once relatively uncommon, postnuptial agreements have become increasingly popular as couples recognize the value of financial clarity within marriage and as the legal landscape has evolved to more consistently enforce these agreements.
Couples seek postnuptial agreements for a variety of reasons. Some married without a prenuptial agreement and later recognize the need for financial planning. Others experience a significant change in financial circumstances during the marriage — such as a substantial inheritance, the launch of a business, or a dramatic change in earning capacity — that makes a postnuptial agreement prudent. In some cases, postnuptial agreements are part of a process of rebuilding trust after a marital crisis, providing both spouses with financial security and clear expectations going forward.
For a postnuptial agreement to be enforceable, both spouses must enter into it voluntarily, with full disclosure of their financial situations, and the terms must be fair and reasonable at the time of execution. Unlike arm's-length business transactions, agreements between spouses are subject to a heightened standard of fairness because of the fiduciary relationship between married partners. Courts will scrutinize postnuptial agreements more closely than prenuptial agreements, making careful drafting and full transparency essential.
Postnuptial agreements can address a wide range of financial issues, including the classification and division of property (separate vs. marital), spousal support obligations, the treatment of business interests, management of debts, and inheritance provisions. They can also address specific scenarios, such as what happens to the marital home in the event of divorce, or how a family business will be valued and divided. The key is creating an agreement that provides both spouses with clarity and security.
Key Considerations
What You Need to Know
Full Financial Disclosure
Both spouses must provide complete and accurate disclosure of their financial situations — including income, assets, debts, and future financial expectations — for the agreement to be enforceable. We guide clients through the disclosure process, ensuring that nothing is overlooked and that the transparency requirement is fully met.
Fairness and Voluntariness
Courts require that postnuptial agreements be substantively fair and entered into without coercion or undue pressure. An agreement that leaves one spouse in a significantly disadvantaged position may be deemed unconscionable and unenforceable. We work to create balanced agreements that protect both spouses' interests and will withstand judicial scrutiny.
Independent Legal Counsel
Each spouse should have their own independent attorney review the agreement before signing. This is not just a best practice — in many jurisdictions, the absence of independent counsel is a factor that courts consider when determining whether to enforce the agreement. We coordinate with the other spouse's attorney to ensure the process is fair and properly documented.
Business Interests and Entrepreneurial Assets
If one or both spouses own a business, a postnuptial agreement can be particularly valuable in defining how the business will be treated in the event of divorce. This may include provisions for business valuation, the allocation of appreciation during the marriage, and protections to ensure the business can continue operating without disruption.
Our Process
What to Expect
We guide you through every step with clarity and care.
Initial Discussion
We meet with you to understand your reasons for seeking a postnuptial agreement, your financial situation, and your goals for the agreement.
Financial Disclosure
Both spouses compile and exchange complete financial disclosures, including statements of income, assets, debts, and future financial expectations.
Drafting
We draft the agreement based on your goals and the financial disclosures, ensuring that terms are clear, fair, and legally sound.
Review and Negotiation
Both spouses review the draft with their respective attorneys, and we negotiate any necessary revisions to reach terms that both parties find acceptable.
Execution
Once finalized, both spouses sign the agreement in accordance with all legal formalities required by your state, ensuring the agreement is enforceable.
FAQ
Frequently Asked Questions
What is the difference between a prenuptial and postnuptial agreement?
The primary difference is timing: a prenuptial agreement is signed before marriage, while a postnuptial agreement is signed after the couple is already married. Functionally, both agreements address similar issues — property division, spousal support, and financial rights. However, courts often apply greater scrutiny to postnuptial agreements because of the fiduciary relationship that exists between married spouses, making fairness and full disclosure even more important.
Are postnuptial agreements enforceable?
Postnuptial agreements are enforceable in most states, provided they meet certain requirements: both parties entered the agreement voluntarily, both provided full financial disclosure, both had the opportunity to consult with independent legal counsel, and the terms are not unconscionable. The specific enforceability standards vary by state, and a few states have additional requirements or limitations.
Can a postnuptial agreement address child custody or child support?
Generally, no. Courts retain jurisdiction over child custody and child support matters and will always decide these issues based on the best interests of the child at the time of divorce, regardless of what any agreement says. While parents can express their preferences in a postnuptial agreement, courts are not bound by custody or support provisions in marital agreements.
When should we consider a postnuptial agreement?
Common situations include: one spouse is starting or has grown a business, one spouse received or expects a significant inheritance, the couple is working through marital difficulties and wants financial clarity, one spouse is leaving the workforce to care for children, or the couple's financial situation has changed significantly since marriage. Essentially, any time there is a desire for greater financial clarity or protection within the marriage, a postnuptial agreement may be appropriate.
Can we write our own postnuptial agreement without attorneys?
While it is technically possible to draft your own postnuptial agreement, it is strongly discouraged. Postnuptial agreements are subject to heightened judicial scrutiny, and a poorly drafted agreement may be unenforceable. Having both spouses represented by independent attorneys significantly increases the likelihood that the agreement will be upheld. The cost of proper legal counsel is a small investment compared to the protection a well-drafted agreement provides.
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