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Do you and your spouse reside in the same household? Do you and your spouse reside in the same household?Last Update August 27th, 2024
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Table of Contents:A Postnuptial Agreement is a legal contract between spouses that determines how assets are separated in the event of divorce. The agreement may also go over topics such as financial support.
The legally binding document works similarly to a Prenuptial Agreement. The main difference between the two is the moment the document is signed.
A Prenup is created before the marriage becomes official. A Postnuptial Agreement, on the other hand, is created and signed after marriage.
A Postnuptial Agreement can also be called a:
Create your document with ease with LawDistrict’s free Postnuptial Agreement template
You may be wondering, “is a Postnuptial Agreement legally binding in my state?”
You will be able to create and use the agreement in practically any location in the United States or a U.S. territory.
Postnuptial Agreements are legally recognized in the following locations:
Review your state’s laws and requirements regarding what can be included and how to formalize the agreement.
A Postnuptial Agreement is written similarly to a Divorce Agreement, however, the two documents have different functions.
Briefly review how Postnuptial Agreements and Divorce Agreements work.
| Postnuptial Agreement | Divorce Agreement |
|---|---|
| Created before any type of separation. Plans the division of assets, property, and outlines any support that will be given in the event of separation. | Created during the separation process. Splits property, assets, and liabilities. A judge will then need to approve the agreement. |
To create a valid Postnuptial Agreement and ensure you protect your assets and more, it is essential to avoid leaving out any key information.
Typically, the agreement contains details such as how certain finances and property will be divided and the responsibilities each spouse would have in the event of separation.
In general, a Postnuptial Agreement will contain the following:
It’s also important for each spouse to add their full financial details, such as their assets and debt, within the contract.
It’s also essential to know what cannot be included in a Postnuptial Agreement.
Certain states do not allow these agreements to contain anything regarding child support or custody arrangements.
Matters of inheritance may also be prohibited, depending on the state.
By creating a Postnuptial Agreement, you can ensure that your separate property and assets remain yours and joint assets are split how you and your spouse agree.
Shared assets that can be divided between you and your spouse include:
To ensure that your Postnuptial Agreement will be considered legally valid, you’ll need to follow specific requirements, which may change depending on your state.
In general, you will need to meet the following requirements to create a legally binding Postnuptial Agreement:
Depending on your state’s laws, the agreement may need to be signed in front of a notary public.
By creating a well-written contract, you can avoid potential legal or financial problems in the event of a divorce.
To correctly write your Postnuptial Agreement, you will need to follow the steps below and include all essential information.
Certain states also allow for decisions regarding child support and inheritance to be included in the Postnuptial Agreement.
Easily draft your agreement and avoid the risk of making a mistake with our Postnuptial Agreement template.
To further help guide you through the process of creating your Postnuptial Agreement, we have included an example of the document.
Review the sample Postnuptial Agreement below to understand how to structure your contract fully.
Certain legal forms and contracts can help you in similar circumstances regarding agreements with your spouse.
By reviewing and using the legal documents below, you can solve any current or future legal situations that may arise concerning your marriage and family.
It is normal to have lingering doubts and questions regarding the Postnup Agreement creation process.
For this reason, we have added answers to the most common queries on the subject.
Review the answers below to clear up any doubts you may have regarding how to create your document, cost, and more.
There are a few common ways to get a Postnuptial Agreement. The most obvious is to go to a lawyer. However, this method may be very costly and time-consuming.
To save yourself time and money, you can use our Postnuptial Agreement template to draft the document yourself.
By downloading the template, you can have your agreement in minutes for a fraction of the cost.
It is completely optional to create a Postnuptial Agreement when two people get married. However, certain spouses may need to create an agreement more than others.
A spouse with many separate assets, such as one who owned a business before marriage, may want to protect that asset.
A spouse with different real estate properties that were acquired before marriage may also benefit from a Postnup Agreement.
It is possible to create your own Postnuptial Agreement without the need to hire a lawyer. It would also be beneficial to do so, that way you can avoid excessive legal fees.
By simply coming to an agreement over the division of your assets with your spouse and downloading a valid legal template, you can easily write your agreement.
Various factors play into how much a Postnuptial Agreement costs. Postnuptial Agreements can easily cost over $1,000 in lawyer fees.
To avoid those excessive charges, you can download our easy-to-use template.
With our Postnuptial Agreement template, you can create your document and avoid having to pay a lawyer excessive fees.
You are only a few steps away from your own Postnuptial Agreement!
Download our professional examplesBACKGROUND
A) This Agreement is made between _________ and _________ (together the "Parties" and separately a "Party") who have the intention to marry each other in the near future.
B) The Parties intend for this Agreement to come into effect upon execution by both Parties.
C) The Parties wish to enter into this Agreement voluntarily to provide for the ownership and division of properties, income, estate, and financial obligations between them, including property that will be owned or acquired by either or both of them.
D) As a result of the relationship, the Parties wish to establish their respective rights and responsibilities that may result from it.
E) The Parties express their intent for the distribution of any property that either or both of them may own will be governed by the terms of this Agreement. To the extent permitted by statutory or case law, the Parties specifically intend that any applicable statutes, either under Federal or State legislation, will not apply to them.
F) The Parties agree that they have been provided with at least seven days to review this Agreement.
G) The Parties also agree that they have had an opportunity to hire their own lawyer and receive independent legal advice with respect to the terms of this Agreement.
H) The Parties have disclosed to their satisfaction all assets and liabilities that each may have, and voluntarily and expressly waive any other rights to disclosure of the property or financial obligations of each other beyond the disclosure provided.
I) Each Party agrees and affirms THAT:
a) The Parties did execute this Agreement voluntarily;
b) This Agreement was not unconscionable when it was executed;
c) Prior to the execution of this Agreement, both Parties have disclosed to their satisfaction all property or financial obligations of the other Party;
d) They have full knowledge of all the facts and circumstances pertinent to the property or financial obligations of the other Party;
e) The Parties have entered into this Agreement freely and under no duress or undue influence on their decision by the other Party;
f) The Parties acknowledge that this Agreement shall continue to be effective even upon termination of marriage whether by death, divorce, or otherwise.
THEREFORE, in consideration of the upcoming marriage, and the mutual commitments and promises contained in this Agreement, the Parties agree as follows:
OWNERSHIP OF PROPERTY
1) The Parties agree that this Agreement will determine the ownership of the property upon the death of a party or if the Parties separate.
2) Except as otherwise provided in this Agreement, all property will be treated as owned exclusively by either one of the Parties (the "Separate Ownership"), except where:
a) it is Joint Ownership; or
b) there is proof of shared legal ownership.
3) Nothing contained in this Agreement shall preclude the Parties from making gifts to the other during their lifetime, at their death, or for benefit of the other party.
4) Unless a Party can reasonably show that they exclusively own a piece of property, where either Party commingles jointly owned property with Separate Ownership, any commingled property will be presumed to be Joint Ownership.
DEBTS
5) The Parties acknowledge that this Agreement shall determine the responsibility of any debt that may occur upon the death of a party or if the Parties separate.
6) All debts jointly acquired, whenever acquired, will be treated as joint debts (the "Joint Debts") and owed by both Parties.
7) Except as stated elsewhere in this Agreement, all debts shall be considered as debts owed exclusively by either one of the Parties (the "Separate Debts"), except in the following circumstances:
a) it is Joint Debt; or
b) there is proof of shared legal responsibility between the Parties.
MARITAL OWNERSHIP RELEASE
8) The Parties agree that they are aware of the community ownership laws of the State of California, and that they have the intention to not apply the community ownership laws to the ownership and division of their property, either jointly or separately owned, nor to their future property, and the Parties further agree that it is their intention by the terms of this Agreement to contract out of the community ownership of the State of California, and to make full disclosure of all of their properties, income, estate, and financial obligations previously and presently owned by either of the Parties or to be acquired by either of the Parties in the future.
DOWER, CURTESY AND HOMESTEAD RELEASE
9) The Parties waive all dower, courtesy, and homestead rights under any statute of the State of California, or any other jurisdiction, that each would have in and to the property in the name of the other, or on their behalf jointly or as tenants in common, except for this Agreement.
SUPPORTSEVERABILITY
10) If any court of law finds invalid, unenforceable, or void any clause of this Agreement, such decision will not have the effect of invalidating or voiding the remainder of this Agreement, and The Parties agree that the section so held to be invalid, unenforceable, or void, will be deemed amended only to the extent required for purposes of validity and enforcement in the jurisdiction of such decision.
GOOD FAITH
11) The Parties create a fiduciary relationship through this Agreement, in which each Party agrees to act with the utmost good faith and fair dealing toward the other Party in all aspects of this Agreement.
FURTHER DOCUMENTATION
12) The Parties agree to attach such additional documentation as is reasonably necessary to give full force and effect to each term of this Agreement.
ENUREMENT
13) This Agreement will inure to the benefit of the Parties, their respective heirs, executors, administrators and assigns and will be binding.
GOVERNING LAW
14) This Postnuptial Agreement, and the status, ownership, and division of property between the Parties wherever either or both of them may from time to time reside, will be governed by the law of the State of California.
TERMINATION OR AMENDMENT
15) The amendment of this Agreement can only be carried out in writing and signed by each of the parties. Their attorneys-in-fact and other legal representatives are not allowed to amend it.
ENTIRE AGREEMENT
16) The Agreement constitutes the entire arrangement and understanding between the Parties and replaces all prior communications, contracts, or agreements between these Parties regarding the subject matter of this Agreement, whether oral or written.
THE PARTIES HERETO HAVE CAUSED THIS INSTRUMENT TO BE EXECUTED ON THE ________ DAY OF ________________, ________.
CERTIFICATE OF INDEPENDENT LEGAL ADVICE
The State of California
County of _________________
I, _________________________, of the City of ___________________, in the State of California, Attorney, DO HEREBY CERTIFY:
THAT I was consulted this day in my professional capacity by _________, named in the document, being a Postnuptial Agreement, separate and apart from _________. I inquired as to _________'s legal rights and responsibilities under the terms and conditions of this Agreement, and I acted exclusively for _________, fully explaining to _________ the spirit and consequence of said Postnuptial Agreement. _________ executed it in my presence, and acknowledged that they were executing it of their own free will and without any influence from _________, or any other person.
DATED at the City of ___________________, in the State of California, this _____ day of ______________, 20___.
____________________________________CERTIFICATE OF INDEPENDENT LEGAL ADVICE
The State of California
County of _________________
I, _________________________, of the City of ___________________, in the State of California, Attorney, DO HEREBY CERTIFY:
THAT I was consulted this day in my professional capacity by _________, named in the document, being a Postnuptial Agreement, separate and apart from _________. I inquired as to _________'s legal rights and responsibilities under the terms and conditions of this Agreement, and I acted exclusively for _________, fully explaining to _________ the spirit and consequence of said Postnuptial Agreement. _________ executed it in my presence, and acknowledged that they were executing it of their own free will and without any influence from _________, or any other person.
DATED at the City of ___________________, in the State of California, this _____ day of ______________, 20___.
____________________________________CERTIFICATE OF ACKNOWLEDGMENT
The State of California
County of _________________
On the _____ day of _____________________ in the year ________, before me, __________________________, personally appeared _________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument, and acknowledged that he/she executed the same in his/her capacity, and that by his/her signature of the instrument, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
NOTARY PUBLICCERTIFICATE OF ACKNOWLEDGMENT
The State of California
County of _________________
On the _____ day of _____________________ in the year ________, before me, __________________________, personally appeared _________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument, and acknowledged that he/she executed the same in his/her capacity, and that by his/her signature of the instrument, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
NOTARY PUBLICSpecial Notes on Postnuptial Agreements governed by the State of California
The State of California has chosen to adopt the Uniform Premarital Agreement Act (UPAA).This statute was created to standardize the requirements of postnuptial agreements between states. As such, this Agreement has been worded based on the notion subscribed to by the UPAA that postnuptial agreements should be entered into voluntarily and with full knowledge of all of the facts and circumstances pertinent to it. Also, The Parties acknowledge that they have made full disclosure of all of their properties, income, estate, and financial obligations.
Signing the Postnuptial Agreement in front of your lawyer and receiving a Certificate of Independent Legal Advice from your lawyer is the best option. Alternatively, at least one of the Parties must receive independent legal advice and the other party must sign a "Waiver of Independent Legal Advice" in front of a Notary Public. In addition, The other party’s lawyer must send a written explanation of the effect of the Agreement to the Party that is waiving legal advice.
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