Postnups are on the rise (it’s a fact!). And if you are one of the thousands of people considering a postnup, you may be wondering if you can draft it yourself, and if so, how to do it. Well, we won’t sugar coat it–drafting a postnup without legal assistance is going to be hard. And in some states, it’s downright unenforceable. However, there may (emphasis on “may”) be states that enforce a self-drafted postnup between a couple if certain legal requirements are met. Let’s dive into the nitty-gritty of how to draft a postnup.
The legal requirements for a postnup
The most important thing to understand when drafting a postnup is that your state laws apply, and you must follow them. For example, if your state requires two witnesses to your postnup, then your prenup likely won’t be enforced unless you have two witnesses. That’s just one example of a legal requirement. There are plenty more. Here are some of the legal requirements that may exist in your state:
- Writing: Putting it in writing (no oral postnups)
- Signatures: Make sure both parties sign it
- Notarization: Notarize the document (signing the postnup in front of a Notary Public)
- Witnesses: Have witnesses witness the signing of the postnup (only a few states require this one)
- Financial disclosure: Both parties must disclose in writing all of their assets, debts, income, and future inheritances.
- Understanding: Make sure both parties fully understand what they are signing, which may mean having attorney representation
- Voluntary: Make sure both parties enter the agreement voluntarily (no coercion or duress)
- Fairness: Make sure the agreement is reasonably fair (not leaving one person totally destitute or in an egregiously unfair position compared to the other person)
- Consideration: Make sure the agreement has consideration (a legal term meaning both parties must “get” something in return for signing the agreement)
Some states have more requirements than the above, and some states have less. Make sure to speak with an attorney in your state to understand what is required.
Why can you put in a postnup
Now, with the legal requirements in mind, you may be wondering what you can put into your postnup. Look no further. Here’s what you can (and cannot) put into a postnup:
- Property ownership: Who owns what property, what is considered separate property, and what is considered marital property?
- Property division: How will marital property be divided?
- Spousal support: How will spousal support be handled in a divorce? (Note: some states, such as California, do not allow spousal support in postnups).
- Debt ownership: Who owns what debt, and how will debt be allocated in the event of a divorce?
- Businesses: Postnups can (and often do) address business interests.
- Inheritances: You can address future potential inheritances from your parents or other family members and ensure they are protected.
- What happens if either of you dies: Postnups can address certain property rights if one of you dies.
Remember, always check with a lawyer and your state law to make sure what you want to put into a postnup is allowed in your state, as it can vary.
Getting a postnup drafted by a lawyer vs. drafting a postnup yourself
When considering a postnuptial agreement, you have two paths: engage a lawyer or draft it yourself. Each option carries distinct advantages and disadvantages.
Lawyer-Drafted Postnup:
- Pros:
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- Increased Enforceability: Lawyers specialize in navigating the complexities of family law, ensuring your agreement adheres to legal standards and reducing the risk of it being overturned.
- Peace of Mind: Expert guidance provides confidence that your agreement is valid and will withstand scrutiny if challenged.
- Cons:
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- Higher Cost: Legal expertise comes at a price, making this option more expensive than DIY.
DIY Postnup:
- Pros:
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- Cost Savings: Drafting your own agreement eliminates legal fees.
- Cons:
- Not allowed in some states: There are a few states that say having lawyer representation is a requirement to a valid and enforceable postnup, such as Minnesota (Minn. Stat. § 519.11). (So in MN, you can’t do a DIY postnup).
- Higher Risk: Without legal expertise, mistakes and omissions are more likely, potentially jeopardizing the agreement’s enforceability.
- Uncertainty: Lingering doubts about the agreement’s validity can create anxiety and undermine its purpose.
Ultimately, the decision hinges on your priorities. If maximizing enforceability and peace of mind are paramount, investing in a lawyer-drafted postnup is probably your best bet. However, if budget constraints are a major concern, a DIY approach might be considered, but proceed with caution and recognize the associated risks.
Step-by-step instructions on drafting your own postnup
If you’re set on drafting your own postnup, despite its many risks, then here are the steps you should take to draft one.
Step 1: Make sure you understand all of your state’s legal requirements
First things first. You’ll need to understand the full legal requirements for a valid and enforceable postnup in your state. Does your state require witnesses? Does your state require a heightened level of consideration?
Step 2: Share your finances with one another and document them
Create a financial schedule that you can attach to your postnup that includes all of your finances–income, debt, assets, and future inheritances. The purpose of financial disclosure in a postnup is to make sure both spouses are aware of all of the finances involved in the marriage so they can make an informed decision when signing the agreement.
Step 3: Understand what you and your partner want to include in your postnup
You and your partner will need to discuss and negotiate the terms that must go into the postnup. Talk about what each of your individual goals are and marital goals are and decide on what you want to include. Remember to research your state’s laws regarding postnups, as some have restrictions on what can be included, such as provisions related to spousal support. Other key topics to consider in your postnup are dividing assets, dividing debts, handling business ownership, handling income, what happens if you die, and classifying ownership of inheritances.
Step 4: Make sure the postnup has consideration
Consideration is a legal term meaning each person “gets” something out of the agreement. For a prenup, the sufficient consideration is simply getting married. That’s not the case for postnups. Each person needs to get something in exchange for signing the postnup.
Step 5: Draft the postnup
Now’s the time to put the pen to paper and memorialize all of you and your spouse’s wishes. Best practice is to put it in writing on a computer and print it out. You should create several copies to have signed and notarized so you each can have original signed copies.
Step 6: Sign and notarize
Make sure you formally sign the postnup through notarization to give it an extra layer of protection. Getting a postnup notarized deters any future spouse from arguing that they didn’t sign it or that they didn’t know what they were signing.
Step 7: Store it somewhere safe
You don’t need to file a postnup anywhere, so make sure that you keep several originally signed copies somewhere safe. In the event of a divorce, you’ll need to bring these original copies to your divorce attorney’s office, who will know what to do with them.
The bottom line on drafting your own postnup
We don’t recommend drafting your own postnup. While hiring a lawyer isn’t necessarily required in every state, it can increase your chances of enforcing the document. If you are going to proceed with drafting your own postnup, make sure you thoroughly understand your state’s legal requirements for a postnup! This may include financial disclosure, consideration, notarization, and witnesses! And don’t forget to enter the agreement voluntarily and knowingly. Both parties should truly understand and agree to the terms. Happy drafting!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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