John and Sarah were happily married. They’d entered into a postnuptial agreement (postnup) early in their marriage. Years later, their circumstances had changed dramatically. They’d built a successful business together, and their initial financial arrangements felt outdated. They began to wonder: could their postnup be altered or even terminated? A postnup is a legal contract established during a marriage and serves to clarify financial matters, protect assets, and outline each spouse’s rights and responsibilities. While postnups are legally binding contracts, they can be terminated or modified by following the correct laws. Let’s dive into everything you need to know about terminating and modifying postnups.
What is a postnup?
A postnup is a contract between two spouses who intend to stay married. People typically get postnups for financial protection, marital issues (reconciliation), unexpected financial changes such as inheritances and business ownership, and lifestyle changes such as new children. The legal requirements for postnups vary by state but generally include being in writing, signed, notarized, reasonably fair, and voluntarily entered into by both spouses.
Can a postnup be terminated?
Yes—there are three main ways a postnup can be terminated: (1) Choosing to revoke the agreement with your spouse, (2) Terminating it through conditions set forth in your postnup, or (3) By a court during a divorce.
Through revocation
You can choose to terminate your postnup, but you and your spouse both must agree to it. This cannot be a unilateral decision. It’s a relatively simple process. You will need to contact a postnup attorney who will help you revoke the agreement according to your state’s laws. This generally includes drafting another agreement stating the revocation of the previous agreement, which both parties have to sign and notarize.
Through conditions in the agreement
Some postnups may include conditions in which the agreement itself terminates on its own. One common way to do this is to have it terminate upon a certain wedding anniversary. For example, “This agreement terminates upon the couple’s 10th wedding anniversary, and the couple shall proceed under default divorce laws if they get a divorce.” This is sometimes called a sunset clause.
By a court
Another way for your postnup to be “terminated” is by a court during a divorce proceeding. This may be because the postnup is invalid or unenforceable for some reason.
The legal requirements to revoke a postnup
One way to “terminate” a postnup is to revoke it. Again, you’ll need to agree with your spouse in order to do this. You’ll also need to have a lawyer assist you with this process. State law dictates what is required to revoke a postnup, so check with your state’s laws on how to do this. However, generally, revoking a postnup involves creating a new written agreement, often called a “revocation agreement,” that clearly states the intent to nullify the original postnup. This revocation agreement must typically follow the same rules you followed to create the original postnup, which may include signatures, notarization, and sometimes states require witnesses.
Alternative to terminating the postnup: Renegotiating
If terminating the postnup is out of the question (i.e., both spouses are not in agreement on revoking it), you might want to consider renegotiating the terms of the postnup instead. This would include discussing with your spouse and their attorney what terms would be acceptable to them and what they would be comfortable with. Then, going back and forth until you both come to an agreement that you feel good about.
For example, if previously your postnup said that alimony would be waived, but now one spouse wants to terminate the agreement to potentially receive alimony, one way to renegotiate would be to keep the alimony waiver but provide a smaller lump sum payment in lieu of alimony.
Get legal advice
It is crucial for each spouse to have their own attorneys for any revocation or renegotiations of a postnup. Revocation and renegotiation both involve intricate legal complexities and having independent counsel (for each spouse) ensures that both party’s rights and interests are protected.
An attorney will generally review the original postnuptial agreement, explain the legal implications of termination or modification, advise on the best course of action, and negotiate terms that are fair and equitable. Attempting to navigate these matters without legal representation can leave you vulnerable to unfavorable outcomes.
Final thoughts
At the end of the day, there are three ways a postnup can be terminated: (1) by revoking it with your spouse, (2) by Creating a condition within the original postnup itself to terminate it, or (3) by a court terminating it during a divorce proceeding. Remember, an alternative to terminating a postnup is renegotiating the terms with your spouse to modify the agreement. If you and your spouse can’t agree to revoke it, then maybe you can agree to modify it. And most importantly, you’ll both need to speak to lawyers to get this process started. Happy negotiating!
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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