Postnuptial Agreement Form

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Updated October 25, 2022

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A postnuptial agreement, or “postnup” or “post-marital agreement,” is a legal document created between a couple after marriage that outlines the division of assets and spousal support in the event of divorce. The agreement can decide financial matters and cannot cover child support or custody.

When creating a postnup, there is no intention of filing for divorce. The agreement is only made as a safety precaution in case of such an event.

Prenuptial (prenup) agreement – A document signed before marriage outlining asset division in the event of divorce.

By State

 

Table of Contents

What is a Postnuptial Agreement?

A postnuptial agreement is a legal document drafted after a marriage or civil union that allows the couple to make preparatory decisions about assets and affairs if there were to be a divorce, separation, or death of a spouse. The agreement must be signed by both spouses and may require a notary acknowledgment or witnesses (in accordance with state laws).

A postnuptial agreement only covers the financial distribution of property and assets after a divorce. All matters related to child custody are determined by the court.

Why Make a Postnup?

In some circumstances, postnuptial agreements are highly recommended for spouses that did not sign a prenup. Marital reasonings may vary, but a majority of cases may fall under one of the following:

  • Inheritance – One spouse might receive a large inheritance or monetary windfall and may want to use the agreement as a protective effort.
  • Financial recklessness – One party may have entered into periods of financial recklessness, causing monetary harm to the marriage and the other spouse.
  • Expeditious marriage – Spouses may have married abruptly and missed the window to create a prenuptial agreement.
  • Childcare – If one spouse leaves their job to stay at home and care for children, they may wish to ensure financial stability in case of divorce.
  • Outdated prenuptial agreement – A former prenuptial agreement may contain obsolete information that no longer serves the couples’ needs.

Requirements to be Valid

Postnup agreements have to meet certain requirements in order to be accepted by a court of law. Failure to meet standards could cause a judge to void the agreement.

  • Written – Oral agreements are not accepted as valid. The agreement must be written in accordance with state standards.
  • Financial disclosures – Each spouse must disclose all assets, income, and liabilities in full (unless a waiver is signed). Failure of full disclosure or inaccuracy may invalidate the agreement.
  • Voluntary – Each spouse must sign voluntarily.
  • Conscionable – The agreement must be fair.
  • Executed in accordance with state law – Signing requirements of the spouses’ state must be adhered to, which may include notarization and use of a witness.

Even after these requirements are met, a post-nuptial agreement may not be ironclad. State law may widely differ between what can and cannot be included in the document.

Do I Need a Lawyer?

A lawyer isn’t legally required for the execution of a postnuptial agreement, and spouses may create the agreement themselves without legal counsel. However, creating an agreement and subsequently commissioning a lawyer to review helps to ensure accuracy and enforceability. Use Findlaw’s family law lawyer search to find an attorney in a state to review a postnup.

Signing Requirements

State Signing Requirements Statutes / Court Rulings
Alabama Both spouses. Barnhill v. Barnhill (1980)
Alaska Both spouses. Brooks v. Brooks (1987)
Arizona Both spouses. Ariz. R. Fam. Law. proc. 69
 Arkansas Both spouses. Stewart v. Combs (2006)
 California Both spouses must sign in the presence of an attorney or notary public. In re Marriage of Friedman (2002)
 Colorado Both spouses. Colo. Rev. Stat. § 14-2-306
 Connecticut Both spouses. Bedrick v. Bedrick (2011)
Delaware Both spouses. Hughes v. Peterson (2012)
 Florida Both spouses. Casto v. Casto (1987)
 Georgia Both spouses. Spurlin v. Spurlin (2011)
 Hawaii Both spouses. Chen v. Hoeflinger (2012)
 Idaho Both spouses must sign in the presence of a notary public. I.C. § 32-917
 Illinois Both spouses. In re Marriage of Richardson (1992)
 Indiana Both spouses. Sanders v. Sanders (2018)
 Iowa Both spouses. In re Marriage of Cooper (2009)
 Kansas Both spouses. Davis v. Miller (2000)
 Kentucky Both spouses. Luck v. Luck (1986)
 Louisiana Both spouses. La. Civ. Code art. 2329
 Maine No statute
 Maryland Both spouses. Nouri v. Dadgar (2020)
 Massachusetts Both spouses. Ansin v. Craven-Ansin (2010)
 Michigan Both spouses. Skaates v. Kayser (2020)
 Minnesota Both spouses must sign in the presence of two (2) witnesses and a notary public. Minn. Stat. Ann. § 519.11(2)
 Mississippi Both spouses. Barton v. Barton (2001)
 Missouri Both spouses. Lipic v. Lipic (2003)
 Montana Both spouses must sign in the presence of a notary public. Mont. Code Ann. § 40-2-312
 Nebraska Both spouses must sign in the presence of a notary public. Devney v. Devney (2016)
 Nevada Both spouses. Cook v. Cook (1996)
 New Hampshire Both spouses. In re Estate of Wilber (N.H. 2013)
 New Jersey Both spouses. Pacelli v. Pacelli (1999)
 New Mexico Both spouses must sign in the presence of a notary public. N.M. Stat. Ann. § 40-2-4
 New York Both spouses. Hershkowitz v. Levy (2021)
 North Carolina Both spouses must be signed in the presence of a notary public or judicial officer. N.C. Gen. Stat. Ann. § 52-10
 North Dakota Both spouses. N.D. Cent. Code Ann. § 14-03.2-05
 Ohio Postnuptial agreements are prohibited. Section 3103.06
 Oklahoma Both spouses. Boyer v. Boyer (1996)
 Oregon Both spouses. In re Marriage of Grossman (2005)
 Pennsylvania Both spouses. Lugg v. Lugg (2013)
 Rhode Island Must be “properly witnessed.” Marscocci v. Marscocci (2006)
 South Carolina No statute
 South Dakota Both spouses. S.D. Codified Laws § 53-8-2(2)
 Tennessee Both spouses. Bratton v. Bratton (2004)
 Texas Both spouses. Tex. Fam. Code Ann. § 4.104
 Utah Both spouses. Peirce v. Peirce (2000)
 Vermont No statute
 Virginia Both spouses. Va. Code Ann. § 20-149
 Washington Both spouses must sign in the presence of a witness and notary public. Wash. Rev. Code Ann. § 26.16.120
Washington D.C. No statute
West Virginia No statute
 Wisconsin Both spouses Wis. Stat. Ann. § 766.58
 Wyoming Both spouses Long v. Long (2018)

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