You can create a postnuptial agreement without hiring a lawyer in many U.S. states, but doing it yourself can make the agreement much easier to challenge later. A valid postnuptial agreement can affect valuable rights involving property, debts, businesses, retirement accounts, inheritance and spousal support, so courts often examine these agreements carefully when one spouse later claims the document was unfair, involuntary or based on incomplete financial information.
There is no single federal law governing postnuptial agreements. Marriage and divorce are primarily controlled by state law, which means the requirements for creating and enforcing a postnup differ across the country.
What Is a Postnuptial Agreement?
A postnuptial agreement, often called a postnup, is a contract spouses enter into after they are already married.
It can establish what will happen to certain financial rights during the marriage or if the couple later divorces or one spouse dies.
A postnup may address:
- Separate and marital property
- Real estate
- Bank and investment accounts
- Business ownership
- Retirement accounts
- Responsibility for debts
- Treatment of future income
- Spousal support
- Inheritance rights
- Division of property after divorce
A postnuptial agreement differs from a prenuptial agreement mainly because a prenup is signed before marriage while a postnup is created after the marriage has already begun.
Do Both Spouses Need Their Own Lawyer?
Many states do not automatically require both spouses to hire attorneys for every postnuptial agreement, but having separate independent lawyers can significantly strengthen the agreement.
One lawyer should generally not attempt to provide legal advice to both spouses when their financial interests differ.
If one spouse’s lawyer drafts the agreement, that lawyer represents that spouse’s interests. The other spouse should ideally have an independent attorney review the document and explain what rights are being surrendered.
Separate lawyers can help establish that both spouses:
- Understood the agreement
- Knew their legal rights
- Had an opportunity to negotiate
- Were not pressured into signing
- Understood the financial consequences
If the agreement is later challenged during a divorce, these facts can become extremely important.
What Makes a Postnuptial Agreement Valid?
Exact requirements differ by state, but enforceable postnuptial agreements commonly share several characteristics.
The Agreement Should Be in Writing
A verbal promise between spouses about how property will be divided is usually not a safe substitute for a formal postnuptial agreement.
The document should clearly identify both spouses and state the rights and obligations being changed.
Both Spouses Must Sign Voluntarily
Neither spouse should be forced, threatened or improperly pressured into signing.
A postnup signed because one spouse threatened immediate financial punishment, concealed important information or gave the other spouse no meaningful opportunity to review the document may face an enforceability challenge.
Financial Disclosure Should Be Complete
Financial disclosure is one of the most important parts of a postnuptial agreement.
Each spouse should generally provide accurate information concerning assets, liabilities and income, including:
- Homes and other real estate
- Bank accounts
- Investments
- Retirement accounts
- Businesses
- Valuable personal property
- Mortgages
- Credit-card debt
- Loans
- Income
A spouse cannot make an informed decision about giving up financial rights without knowing what property and obligations actually exist.
Hiding a valuable business or investment account can provide powerful grounds for challenging the agreement later.
The Terms Should Not Be Unconscionable
Courts may refuse to enforce agreements or provisions that are extremely unfair under the applicable state’s law.
An unequal agreement is not necessarily invalid. One spouse may intentionally agree that the other will keep a business or certain property.
The concern becomes greater when an agreement is extraordinarily one-sided, particularly when combined with pressure, inadequate disclosure or lack of independent advice.
State Signing Formalities Must Be Followed
Some states impose additional requirements concerning notarization, acknowledgment, witnesses or the manner in which marital agreements must be executed.
A professionally written agreement can still fail if required signing formalities are ignored.
This is one reason generic internet templates can be risky.
Can You Write Your Own Postnuptial Agreement?
Spouses can attempt to draft their own postnuptial agreement where state law allows it.
A basic DIY agreement might identify:
- Property each spouse already owns.
- Property that will remain separate.
- How future income will be treated.
- Responsibility for existing debts.
- How jointly acquired property will be divided.
- What happens to a business.
- Whether spousal support rights are modified.
- What happens if either spouse dies.
The difficult part is not simply putting these intentions into sentences. The agreement must interact correctly with state property, divorce, estate and contract law.
A sentence that sounds perfectly clear to the couple may have a different legal effect when interpreted years later by a divorce court.
Is an Online Postnup Template Enough?
An online template can provide a starting structure, but it cannot determine whether its provisions comply with the law of your state or properly address your financial circumstances.
Templates become particularly risky when the marriage involves:
- A house with substantial equity
- A family business
- Multiple properties
- Large retirement accounts
- Stock options
- Significant investments
- Children from previous relationships
- Large differences in income or wealth
- Complicated inheritance plans
A generic form may also contain provisions that are outdated or unenforceable in your jurisdiction.
If the purpose of the postnup is to protect hundreds of thousands of dollars in assets, saving a relatively small amount on legal review can create much larger problems later.
Can One Lawyer Prepare the Agreement for Both Spouses?
One lawyer may physically prepare documents based on terms the spouses have discussed, but that does not normally mean the lawyer can independently represent both spouses’ competing interests.
A postnuptial agreement frequently involves one spouse giving up rights that could benefit the other spouse.
For example, suppose a husband owns a growing business and wants the postnup to state that all future appreciation remains his separate property. His interests may differ substantially from those of his wife.
The lawyer representing the husband cannot also give the wife independent advice about whether surrendering those rights is good for her.
The cleaner approach is for one attorney to prepare or negotiate the agreement and for the other spouse to obtain separate legal advice.
Can a Postnup Decide Child Custody?
Spouses should not rely on a postnuptial agreement to permanently control future child custody or parenting arrangements.
Courts decide custody based on the child’s best interests at the relevant time. Parents cannot ordinarily use a private marital contract years in advance to prevent a court from protecting a child’s interests.
A provision stating exactly who will receive custody after a future divorce therefore may not bind the judge.
Can a Postnup Set Child Support?
Parents generally cannot use a postnuptial agreement to eliminate a child’s right to appropriate financial support.
Child support is treated differently from ordinary property rights between spouses because the support is intended for the child.
A couple may discuss financial arrangements in a postnup, but a court can apply the state’s child-support laws rather than enforce a private provision that improperly reduces or eliminates support.
Can a Postnuptial Agreement Waive Alimony?
A postnup may address spousal support in many jurisdictions, but these provisions receive careful scrutiny.
State law determines whether spouses can waive, limit or predetermine future alimony and under what conditions.
A waiver that appeared reasonable when signed could also face challenge if the applicable state’s law permits a court to consider later hardship or fairness.
Because alimony rights can be worth substantial amounts over many years, this is one area where independent lawyers are especially useful.
Why Are Postnups Sometimes Harder to Enforce Than Prenups?
A postnup is created after spouses already owe each other legal and financial duties arising from marriage.
There can also be more opportunity for pressure.
For example, one spouse might say that the marriage will end immediately unless the other signs away valuable property rights. A court reviewing the agreement later may examine closely whether the signing was genuinely voluntary.
Courts can also look at the spouses’ financial relationship, disclosure, bargaining power and circumstances surrounding execution.
A carefully documented negotiation therefore matters.
When Is Hiring a Lawyer Particularly Important?
Independent legal advice becomes especially valuable when the agreement involves:
- Significant wealth
- A business or professional practice
- Real estate
- Retirement benefits
- Large debts
- A substantial income difference
- Spousal-support waivers
- Inheritance rights
- Children from another marriage
- An existing prenup that is being changed
- A marriage already experiencing serious conflict
Even couples who prepare the first draft themselves can pay separate lawyers to review it before signing.
That can cost much less than having attorneys negotiate the entire agreement from the beginning while providing an important additional safeguard.
Frequently Asked Questions
Q1. Can we use one lawyer if we completely agree on the postnup?
The spouses may completely agree personally, but their legal interests can still differ. One attorney may be able to prepare documents in some circumstances, but independent representation for each spouse provides much stronger evidence that both understood their rights and entered the agreement voluntarily.
Q2. Does a postnuptial agreement need to be notarized?
The answer depends on state law and the type of provisions involved. Some jurisdictions impose acknowledgment, notarization or other execution requirements. Even where notarization is not strictly required, properly documenting signatures can help prevent later arguments about authenticity.
Q3. Can we change a postnup after signing it?
Spouses can generally modify or revoke a postnuptial agreement if both agree and follow the legal requirements for doing so. Changes should normally be made formally in writing rather than relying on a later verbal understanding.
Q4. What happens if one spouse hides money before signing the agreement?
Concealing significant assets, debts or income can seriously undermine enforcement. Full and accurate financial disclosure helps demonstrate that the other spouse understood the financial rights being accepted or surrendered when signing the agreement.
