How to Write a Postnuptial Agreement

How to Write a Postnuptial Agreement

While most of us heard of the prenuptial agreement in some context or the other, the postnuptial agreement is still a bit of a novelty. In this article, we tell you why many couples are opting for this agreement and also tell you how such an agreement should be drafted.
Wedessence Staff
Last Updated: Jun 3, 2018
Entering into a marriage doubting that it will end in a separation or a divorce is not something that anyone wants, but occasionally it may just seem pragmatic or even downright practical to sign an agreement that will protect the assets and rights of both partners. If you are already married and did not sign a prenuptial agreement, then one option that you could consider is a postnuptial agreement. The only difference between the two contracts is that the latter is negotiated only after the marriage. Also, such an agreement is mostly signed when a couple is having severe problems and the agreement serves to address these issues. In this article, we give you an introduction to the concept of a postnuptial agreement and also tell you what things you need to keep in mind when you draft such a document.

Postnuptial Agreement: An Overview

Another name that is often used to refer to these agreements is antenuptial contracts. Such agreements have to be signed by both partners. Without such an agreement, if you opt for a legal separation or a divorce, then you would have to depend on the decision of the court regarding matters like property division and spousal support. Every state has a different law regarding postnuptial agreements and whether or not they are required. In fact, in some states, these agreements are not legally recognized as legal documents. Therefore, if you are opting for such a document, it is always advisable to consult a lawyer. In other states, there is a possibility that you may need to make a complete disclosure about your financial condition. In no state is it possible to determine an amount for child support in your antenuptial contract. Nor it is possible to include clauses for custody and visitation. These are clauses that are decided on the discretion of the court.

So why are so many couples opting to sign for postnuptial agreements, in some cases decades after their marriage? The reasons are many. Most frequently it is due to financial conflicts that may arise during the marriage. It can often cause feelings of resentment if one partner is completely dependent on the other for financial security. Most postnuptial agreements serve to ease financial tensions that may arise between partners. It is not always a reflection on your relationship but only a practical way of dealing with anything that may be thrown at you in the future. Antenuptial agreements are also a good idea in case of couples who are bound by civil unions.

Writing a Postnuptial Agreement

First and foremost, it is important to understand that you cannot draft a postnuptial agreement on your own. You will need to consult a lawyer to ensure that everything is in order. This agreement has to be in writing and must be agreed upon by both parties involved. At the time of the execution of the contract, it is important that full and final disclosure has been done by both parties. The agreement has to be acknowledged by both parties in front of a notary. This acknowledgment needs to done in actual presence of both parties and not their attorney or lawyer. There are some important tips that you should keep in mind while writing a postnuptial agreement.
  • It is important to understand that your marriage till you sign such an agreement is subject to the clauses as stated by the joint property law.
  • While drafting the agreement, it is important that all assets of both partners are listed and there is complete clarity about payment of debts, division of joint property, allocation of land, rights over inheritance and gifts, etc.
  • In such an agreement, it may also be a good idea to make a mention of inheritance of property in the event of death of one of the spouses. It is always advisable to make a mention of future earnings and profits.
  • Factors like spousal support and alimony can also be discussed in such an agreement to avoid later tensions.
These are just some of the more important things to keep in mind while writing a postnuptial agreement. Just like a prenuptial agreement, this agreement is just a way of protecting your rights as an individual and is no way a prediction of doomsday. So, if your partner does suggest an agreement of this nature, it may be a good idea to think about it calmly before you get worked up.