One common misconception about postnuptial agreements (postnups) is that they are only for divorcing couples. That couldn’t be farther from the truth! In fact, postnups SHOULD NEVER be signed by divorcing couples. Instead, a divorcing couple should get a divorce settlement agreement. A postnup, on the other hand, is used to promote marital harmony and is intended for couples who plan to remain married. Let’s discuss the purpose of prenups, who should get them, and what divorcing couples should be doing instead. 

What is the purpose of a postnup? 

A postnup is a marital agreement signed by two spouses who plan to remain married. It is sort of like a prenup, but it is signed during the marriage instead of before the marriage. It can lay out specific aspects of the relationship, such as property ownership, debt allocation, spousal support (in some states), and other matters. Postnups are meant to give each person agency and financial independence in a marriage. They can also clarify financial obligations and roles. 

Who should get a postnup? 

So, who should get a postnup then, if it’s not a divorcing couple? Here are some couples/people who may benefit from a postnup: 

• Couples with marital issues but who want to remain married 
• People in second marriages with children from previous relationships 
• Couples who want to align on financial matters with their spouse 
• People who have run into a large amount of money and want to clarify financial arrangements with their spouse
• People who have started a business during their marriage and want to clarify business ownership 
• People who want to ensure their assets are devised properly upon death 

As you can see, a postnup is all about clarifying financial matters, reconciling a couple, and/or aligning spouses on financial goals. 

Requirements for a valid postnup

Postnups are dictated by state law, which means each state lays out the specific requirements needed to create a valid postnup. What is required of a postnup in California is not necessarily required in Alabama. However, certain requirements are generally true in most states. 

Here’s what to know:

• The postnup is created with the intent to remain married 
• It is put into writing and signed during the marriage 
• Both spouses share their finances with each other (values of income, assets, debt, and inheritances) 
• There is at least one provision benefitting both spouses (though it doesn’t need to be 50-50)
• Both parties voluntarily enter into the agreement without any evidence of fraud, duress, etc. 
• Some states also require notarization and witnesses to the signing

Remember to check with your state’s laws to understand what is required for a postnup because it may differ slightly from the requirements above. 

What agreement should a divorcing couple get? 

We know what they should NOT get, and that is a postnup. A divorcing couple should instead speak with a divorce attorney who may recommend another type of contract that is signed incident to divorce—a divorce settlement agreement. In some states, this might be called a property settlement agreement, settlement agreement, or something similar. 

While technically any agreement signed after the wedding day but before the divorce is final is “post” “nuptial” (i.e., after the nuptials), the term “postnuptial agreement” is generally used to describe an agreement that is meant for couples who plan to remain married. 

Many other types of married couples can get postnups, not just divorcing couples 

Postnups are not for divorcing couples. They are actually for couples who intend to remain married. They’re a way to create marital harmony within a relationship and outline certain financial matters between the couple. If you’re a divorcing couple, you should speak with a divorce attorney to understand what your next steps would be and potentially help you draft a divorce settlement agreement instead.

You are writing your life story. Get on the same page with a prenup. For love that lasts a lifetime, preparation is key. Safeguard your shared tomorrows, starting today.

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Nicole Sheehey

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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