Understand Your Rights. Solve Your Legal Problems
Understanding Postnups: What they are, how they’re different from prenups, what they can and can’t do, and the indispensable role of legal counsel.
You’re likely familiar with prenuptial agreements ("prenups")—those foundational contracts signed before marriage, often addressing financial arrangements in case of divorce. But what is a Postnuptial Agreement, and how do Postnuptial agreements work?
Postnuptial Agreements, are a less-discussed but equally vital tool that exist for married couples: the postnuptial agreement, or "postnup." While sharing similarities, significant distinctions arise. Critically, these agreements also differ from separation or divorce settlements made when a marriage is already ending.
Courts typically scrutinize postnuptial agreements with a higher degree of skepticism regarding fairness and transparency compared to agreements between unmarried parties. This heightened standard reflects the unique fiduciary relationship spouses share.
A postnuptial agreement—sometimes termed a post-marriage or marital agreement—is a legally binding contract executed by spouses during their marriage, but notably, prior to any formal separation or divorce proceedings.
Primarily, postnups delineate how marital property and debts will be divided should the marriage dissolve. Beyond asset and debt allocation, these agreements frequently cover other critical financial matters, such as the inheritance rights of each spouse upon the other's passing.
While couples might wish to address various aspects of their marriage within such a contract, it's crucial to understand that only specific, legally permissible provisions are enforceable by a court. (Further details below on enforceable and non-enforceable clauses.)
While both prenuptial and postnuptial agreements serve to clarify financial rights and responsibilities, their timing within the marital journey creates fundamental legal and practical differences.
Couples often seek similar clarity regarding divorce, property division, or inheritance, regardless of when the agreement is signed. However, the judicial review process for postnups carries stricter requirements.
These mandates, while varying by jurisdiction, are rooted in common legal principles designed to protect the integrity of the marital relationship.
To withstand judicial scrutiny, postnuptial agreements, like all valid contracts, must adhere to certain foundational legal criteria. Generally, for an agreement to be upheld, it must:
The legal system views marital relationships as inherently fiduciary, implying a profound bond of trust and an expectation that spouses act in each other's best interest. This principle drives the heightened judicial standard applied to postnuptial agreements.
For instance, in California, spouses owe each other a "duty of highest good faith and fair dealing." This means neither spouse can gain an unfair advantage, and both must provide complete, accurate disclosures of all assets and liabilities. (Cal. Fam. Code § 721 (2024).)
Similarly, Ohio law provides that a postnuptial agreement won't be enforceable unless both spouses knew and understood the value, nature, and extent of all of their property when they signed the agreement. (Ohio Rev. Code § 3103.061(C) (2024).)
Beyond these specific statutory mandates, many judges recognize the inherent power dynamics within a marriage. A spouse might be in a vulnerable position, susceptible to pressure that compromises their financial rights.
Consequently, courts meticulously examine marital agreements to ensure genuine fairness and equity during any subsequent legal proceedings.
"Consideration" is a foundational contract law principle, referring to the value exchanged between parties to make a promise legally binding. For prenuptial agreements, the mutual promise to marry typically serves as sufficient consideration. However, this is not always the case for postnuptial agreements.
In jurisdictions like New York, a postnuptial agreement may be deemed invalid if it lacks "valuable consideration." Simply promising to remain married is often insufficient.
For example, a court might not enforce a wife's waiver of claims to a husband's business if she received no tangible benefit in return. (Whitmore v. Whitmore, 8 A.D.3d 371 (N.Y. App. Div. 2004).)
Conversely, courts in other states have accepted a spouse's agreement to temporarily halt divorce plans as adequate consideration for property agreements. (Hall v. Hall, 27 N.E.3d 281 (Ind. Ct. App. 2015); In re Marriage of Tabassum and Younis, 881 N.E.2d 396 (Ill. Ct. App. 2007).)
Moreover, mutual waivers, such as both spouses relinquishing inheritance rights, often constitute valid consideration.
However, not all states mandate consideration for postnups. Colorado law explicitly states that both premarital and marital agreements are enforceable without it.
Similarly, Florida law allows a spouse to waive inheritance rights as a surviving spouse in a prenup or postnup without receiving any consideration in return for that waiver. (Colo. Rev. Stat. § 14-2-306; Fla. Stat. § 732.702 (2024).)
Beyond the core principles, state laws may impose specific additional requirements:
Independent Legal Representation.
Minnesota law, for instance, mandates separate legal counsel for both spouses for a postnuptial agreement to be enforceable. This contrasts with prenups, where a "meaningful opportunity" to consult an attorney suffices.
Interestingly, California's requirement for independent counsel in prenups does not extend to postnuptial agreements. (Minn. Stat. § 519.11; Cal. Fam. Code § 1615(c)(1) (2024); In re Marriage of Friedman, 122 Cal.Rptr.2d 412 (Cal. Ct. App. 2002).)
The advice to seek separate counsel, even if not legally required, is paramount.
Some states may invalidate a postnup signed too close to a divorce filing. For example, Minnesota law creates a presumption of unenforceability if either party files for divorce or legal separation within two years of signing. (Minn. Stat. § 519.11, subd. 1a, (1)(d) (2024).)
No "Promotion" of Divorce.
Ohio law explicitly states that a postnuptial agreement will not be enforceable if it is found to encourage or incentivize divorce. (Ohio Rev. Code § 3103.061(D) (2024).)
Specifics for Waiving Probate Rights.
When a spouse waives inheritance rights as a surviving spouse under probate law, specific formalities may apply. Florida, for example, requires the written agreement to be signed before two witnesses.
Additionally, full disclosure of each spouse's estate is necessary. (Fla. Stat. § 732.702 (2024).)
Postnuptial agreements are primarily utilized to pre-determine financial matters during marriage, upon divorce, or at death.
Property and Debts.
Postnups commonly dictate how marital property and debts will be divided in a future divorce. This can include agreements that each spouse retains their individual earnings and assets as separate property, and bears responsibility for their own debts.
However, it's vital to note that some states, like Nebraska, restrict using postnups for divorce-related property allocation unless signed during actual separation or divorce proceedings, effectively reclassifying them as separation or divorce settlement agreements. (Devney v. Devney, 886 N.W.2d 61 (Neb. 2016).)
Alimony (Spousal Support).
Spouses can use a postnup to waive future spousal support rights or agree on specific alimony amounts. However, courts may choose not to enforce such provisions if, at the time of divorce, circumstances have changed so drastically that enforcing the original agreement would be egregiously unfair or unconscionable. (Newman v. Newman, 653 P.2d 728 (Colo. 1982).)
Inheritance Rights.
Spouses frequently utilize postnups to formally waive their respective rights to inherit from one another's estates upon death, ensuring assets pass according to wills or other estate plans.
However, certain provisions are consistently outside the scope of postnuptial agreements and will likely not be enforced by courts:
Child Custody.
Any agreements regarding child custody made in a postnup will be subject to judicial review at the time of separation or divorce. A judge's paramount duty is to determine arrangements that are in the children's best interests based on current circumstances, which inherently change over time. Thus, pre-determined custody provisions are not binding.
Child Support.
State laws provide specific guidelines for calculating child support, primarily based on current parental income and needs. While parents can agree to deviate, a judge must approve such deviations only if the guideline amount is deemed unfair or inappropriate given current circumstances.
Therefore, any child support provisions within a postnuptial agreement regarding future obligations are generally unenforceable in the parents' later divorce.
Performance of Marital Duties.
Courts typically refrain from enforcing provisions dictating "normal marital duties," such as household chores or other relational responsibilities.
For example, a California court refused to enforce an agreement where a wife was promised property for caring for her ailing husband, ruling that spousal care is an inherent part of marital support obligations and not valid consideration for a separate property transfer. (Borelli v. Borelli, 12 Cal.App.4th 647 (Cal. Ct. App. 1993).)
Some states even explicitly list unenforceable provisions. Colorado, for instance, invalidates clauses that penalize a spouse for seeking divorce or restrict legal remedies for domestic violence victims. (Colo. Rev. Stat. § 14-2-310 (2024).)
Married couples choose postnuptial agreements for a myriad of evolving reasons:
Advantages of a Postnup.
A postnup offers a invaluable opportunity for transparent and explicit financial discussions, setting clear expectations within the marriage. In cases of marital discord, negotiating a postnup can even serve as a catalyst for reconciliation, providing a spouse a tangible reason to commit to the marriage's future.
Should divorce proceedings commence and a postnup be challenged, the presiding judge will meticulously assess its validity against state requirements. A spouse might argue the agreement is invalid due to non-disclosure of assets, misrepresentation of facts, coercion during signing, or if its terms are unconscionable.
Conversely, if seeking enforcement of a marital agreement, the outcome hinges on state laws, relevant court precedents, and the strength of the evidence presented to prove the agreement's fairness and proper execution.
As highlighted, in some states, postnuptial agreements are only legally valid if both spouses secured independent legal counsel (or had a clear opportunity to do so) prior to signing. Even where not legally mandated, it is profoundly risky to sign any marital agreement without independent legal advice.
An experienced family law attorney provides crucial guidance, explaining specific state requirements for postnuptial agreements, ensuring the document is drafted correctly, and confirming it is fair to both parties.
If your spouse presents you with a draft, it is imperative to have your own independent lawyer—never your spouse's attorney—review and advise you before you commit to signing. This step is fundamental to protecting your legal rights and financial future.
A postnup isn't "better" or "worse" than a prenup; they serve similar purposes at different stages. Prenups are often preferred as they are signed before the marital fiduciary duty begins, leading to less judicial scrutiny.Postnups, signed during marriage, face higher standards of fairness and transparency due to the existing spousal relationship of trust. Both require careful drafting and independent legal counsel for enforceability.
A postnuptial agreement is a legally binding contract signed by a couple after they are married. It outlines how their assets, debts, and other financial matters will be handled during their marriage and, critically, in the event of divorce or death.
