Signing a postnuptial agreement (aka “marital agreement”) is more than sitting down with your spouse and putting pen to paper. When signing a postnup, you and your partner are making a binding commitment to each other under the law. And, this agreement is one that a court may later examine for fairness, voluntariness, and precision. Because spouses have a fiduciary duty of care to one another, this creates a unique legal relationship. Therefore, postnups tend to be scrutinized more intensely than prenups. To ensure your postnuptial agreement stands the test of time, you need clarity, transparency, and proper formalities. What steps should we take to ensure our postnup is valid? And, what does full transparency mean? Walk through this guide to find the answers to your questions and to discover how to sign a postnup the right way.
Begin with full transparency and good timing
Before drafting begins, both spouses must commit to full and fair financial disclosure. That means a complete and honest revelation of assets, debts, income, and business interests must occur. If one spouse hides something significant, courts later may invalidate the agreement for fraud or nondisclosure. Many states treat disclosure not as a courtesy but as a legal prerequisite. In California, for example, courts expect robust openness.
Timing also matters. Drafting a postnup under duress, say, just before a divorce filing or amid extreme conflict, raises red flags. Courts often look closely at when you asked for signatures and whether one spouse used emotional or financial leverage. Courts also look to whether both spouses had the opportunity to consult an attorney for professional and objective legal guidance. To avoid such challenges to the validity of your postnup, schedule the signing during a stable period, give the other spouse ample time for review, and don’t rush them.
Clarity, fairness, and legal guardrails
Your postnup should be written, and the language should be precise. Oral agreements are not enforceable. The language should avoid ambiguity. Terms like “fair share” or “reasonable support” are too vague. Instead, specify exactly how property and debts will be divided, whether spousal support is waived or limited, and how you’ll address future changes in your life. Many couples use postnups to clarify issues that have changed after marriage (i.e., business interests, inheritance, and career shifts). It’s also wise to exclude provisions that courts won’t enforce. Child custody, child support clauses, or punitive “divorce incentive” terms typically get overwritten by courts in favor of the child’s best interest or public policy. A postnup is a financial roadmap, not a parenting manual or a tool for intimidation.
Execute with proper formalities and legal advice
To be valid, a postnup must be signed by both spouses. Each should do so knowingly and willingly without coercion, duress, or unfair pressure. In many states, not only the signatures, but also the circumstances of signing are important. Was there sufficient time to read? Was there independent advice? Were signatures notarized or witnessed appropriately? In some states, like California, independent legal counsel is required when spouses waive or modify spousal support (Cal. Fam. Code § 1615(c)).
For instance, depending on state law, a court may ignore a waiver of support if one spouse lacked legal representation at signing or didn’t understand the implications of what they were signing. Having each spouse represented by different attorneys helps protect the agreement from later attack. Some jurisdictions also require notarization or acknowledgment of the postnup signatures. Even where it’s not mandatory, notarization strengthens enforceability. When it comes to a postnup, parties should strive to have every possible procedural protection in place.
Documenting intent and procedural steps
During the postnup drafting and signing process, it would be wise to maintain records that show the process was fair and collaborative. For example:
- Each spouse should receive a copy of the draft well before signing
- A reasonable amount of time should be given for review and for the opportunity to consult an attorney
- Acknowledgments in writing that both parties understood the terms of the agreement
- Evidence that negotiation was in good faith
- Legal counsel correspondence or certifications
- Notarizations and witnessing per state law
Though keeping track of the above information is not a requirement, these documents could help a court see that no one was pressured or blindsided.
Steps to take after signing a postnup
Once both parties sign the agreement, store the original document in a safe but accessible place. This location should be one that you and trusted parties know about. Provide copies of the signed postnup to both attorneys. And keep digital backups. Over time, life evolves. Children are born, careers change, health changes, businesses grow or shrink, and inheritance is received. A postnup should not be a static document that is filed away, never to be reviewed again. Revisiting your agreement periodically, or at least when significant changes occur, is the smart thing to do. If the agreement no longer reflects reality or the parties’ capacity, it may be vulnerable to being set aside. Set an annual calendar alarm to pull out your postnup and review it with your spouse.
State-by-state variation matters
It’s essential to remember that while the above steps are broadly applicable across the country, each state has its own legal twists and requirements when it comes to postnuptial agreements. Some states impose additional signature or notarization rules. Others require waiting periods, heightened scrutiny in “late postnups,” or limitations on waiving certain rights.
For instance, New York courts view marital agreements under fair disclosure and may require equivalence to deed formalities. What works in Colorado might not fly in Minnesota. Your agreement should be tailored to the state where it will be enforced. Make sure to consult a family law attorney in your state who is experienced in postnuptial agreements. Quiz your lawyer about your state’s specific requirements and ask how you and your spouse can help ensure all of the proper procedures are taken.
Final thoughts on how to sign a postnup
Marriages evolve over time and so do the needs and concerns of each spouse. Sitting down with your spouse to make a roadmap for financial clarity and asset protection is an important task to put on your to-do list. If done thoughtfully, signing a postnup is an effective way to bring transparency, respect, and clarity into a marriage. And because courts treat postnups with heightened scrutiny, the stakes are high. Make sure that you follow the steps above, including full financial disclosure, negotiating in good faith, precise drafting, procedural formalities, and ideally, involving independent legal counsel. These steps will give your agreement its strongest chance of holding up under scrutiny.
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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