Delaware Postnuptial Agreement

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Updated August 07, 2022

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A Delaware postnuptial agreement is a legal document created by a married couple that determines what will happen to their property if the marriage ends in divorce or death. Like a prenuptial agreement, or “prenup,” a postnuptial agreement helps couples avoid the uncertainty that can result at the end of a marriage; in the case of a divorce, Delaware judges have extensive power to create an “equitable distribution” of marital property. Unlike prenups, couples enter into postnuptial agreements after they’ve married. Postnups may face different requirements. Delaware law primarily uses the term “separation agreements,” but it is not clear which of its rules apply to agreements not created in anticipation of a divorce.

Signing Requirements – Both spouses must sign separation agreements freely and with adequate knowledge of the couple’s finances. Hughes v. Peterson (2012).


Interpretation: Postnuptial agreements should be interpreted under the general law of contract and bound by their agreements. Rockwell v. Rockwell (1996).

Burden: Where a separation agreement results in one party in the marital relationship profiting at the other party’s expense, the responsibility is on the profiting party to prove that the separation agreement is fair. Hughes v. Peterson (2012).