Are you a Type A person? If so, look no further. We know you love checklists and to-do lists as much as us, so we’ve put together a nice little postnup agreement checklist to get you through your postnup journey. Remember, a postnup is an agreement you sign with your spouse during the marriage (a prenup is signed before the marriage). Postnups are a proactive tool to increase financial clarity and security while also promoting marital harmony. Remember, you cannot get a postnup if you’re planning for divorce—that’s a different process. Without further ado, let’s get into the postnup agreement checklist!
✅ Step 1: Understanding the basics of postnups
The first step to getting a postnup is to have a general understanding of what a postnup is. You don’t have to become a lawyer by any means—just understand what postnups are, how to get one, and what usually goes into one. We’ll do the hard work for you now.
Here’s what to know for the basics of postnups:
- What it is: A postnup is a contract between two spouses who intend to remain married (it’s a tool to create marital harmony, not create conflict).
- How to get one: You should receive legal advice and representation regarding your postnup. A lawyer can also help you draft and execute it.
- What goes in it: A postnup typically includes clauses about property ownership, debt allocation, spousal support (in most states), and other financial matters.
- Why get one: People typically get a postnup because: (1) they missed the timeline to get a prenup, (2) they have experienced a significant financial change in their life, and/or (3) they’ve experienced some marital issues.
So, there you have it—Step 1 complete. You now have a basic understanding of postnups! Let’s move on to the next step.
✅ Step 2: Self-reflection and open communication
The next step to getting a postnup is for both spouses to do some self-reflection on what each person is looking for out of the postnup. In addition, both spouses will need to openly communicate with each other to discuss the idea of a postnup in general and also any shared goals.
Stuck on where to start? Here are some talking points to determine your individual and shared goals for your postnup:
- What are your individual financial priorities? (Saving for retirement, buying real estate, starting a business, etc.)
- What are your shared financial goals as a couple? (Retire by 45, buy a vacation home together, start a business, etc.)
- What are your concerns about the future? (Childcare, care for elderly parents, retirement)
- Are there any specific assets or debts you want to address?
Remember, when having these conversations with your spouse, it is of utmost importance to stay honest and transparent in order to eventually reach an agreement that is fair and transparent to both parties.
✅ Step 3: Finding the right legal counsel
As we mentioned in Step 1, hiring a lawyer is crucial to getting a valid and enforceable postnup. While it’s not always explicitly required in every state and situation, it’s incredibly important to increase your chances of having your postnup enforced. And, remember, each spouse should have their own attorney—you can’t share one.
But how do you find the right attorney? You can ask your friends and family for referrals, use search engines to find postnup lawyers online, or contact your local bar association for referral help.
You can always schedule free consultations with several different attorneys in order to get a feel for each one and assess your compatibility. In your free consultation, make sure to ask about things like the cost of a postnup, how long it will take, and any other high-level questions you may have.
✅ Step 4: Gathering your financial documents
Now that you’ve selected the attorney you wish to hire, it’s time to prepare for your first call. Generally, after an initial free consultation, your attorney will set up a longer intake call with you to gather information. They will ask you about your goals for the postnup (which you’ve already sorted out in Step 2), and they will also ask for your financial information.
In order to prepare for this call, you should gather a detailed list and documentation regarding your finances. Include everything. Income, assets, debts, future inheritances, you name it.
While everyone’s financial situation is different, here are some documents to start gathering:
- Income tax returns (the past 3 years typically is enough)
- Bank and investment account statements
- Real estate deeds and mortgage information
- Debt statements (credit cards, loans)
- Business ownership documents (if applicable)
- Trust documentation (if applicable)
- Any other asset documentation
The reason financial information like this matters is because of financial disclosure—it’s required for a valid postnup. Both parties are generally required to fully disclose the values of their assets, debts, income, and future inheritances for a postnup to be valid.
✅ Step 5: Drafting the agreement
This step isn’t really on you, but rather, on your attorney. One attorney will now draft the agreement according to both spouses’ shared and individual goals for the postnup and each spouse’s financial information. This part of the process may take a few weeks to complete, depending on how quickly the attorney works and how busy they are.
The spouse’s attorney, who drafts the agreement, will then send a draft to the other attorney (your spouse’s attorney). Your spouse’s attorney may have suggestions or “red lines” to the contract in order to meet their clients’ needs (a.k.a., your spouse). This is where negotiations come in (which brings us to the next step).
✅ Step 6: Negotiating the postnup
The next step is negotiating the postnup. Typically, the attorneys do this on behalf of their clients to take any awkwardness out of the equation for the spouses. Good postnup attorneys will try to make the negotiation process collaborative and non-confrontational. Remember, this postnup is all about marital harmony, not fighting tooth and nail for every last penny, as may be the case in a divorce. Making sure the agreement is fair and mutually beneficial is the main goal.
✅ Step 7: Reviewing the final agreement
Once negotiations are complete, it’s time to review and ask your attorney any last-minute questions. Now is the time to make sure you understand every last word of the agreement. If you don’t understand something—ask.
This is a legally binding agreement that you need to understand the terms of.
Again, now is NOT the time to hold back on any concerns. Speak up. It’s critical that both spouses feel satisfied with the final terms of the agreement so as not to cause any issues with the postnup down the line (like one person challenging the agreement later on).
✅ Step 8: Executing and notarizing the postnup
Now, it’s time to actually sign the agreement. Notarization isn’t always required in every state, but it is good to do regardless. Getting your postnup notarized is a way to add a layer of protection to your postnup and help avoid questions of fraud later on.
The process is simple:
- Both attorneys will sign the document first. Their signatures need to be on the document that you and your spouse sign.
- Both spouses will sign the document in front of a notary public.
- The notary public will attach their signature and seal to the postnup.
Some states also require witnesses. If that is the case, then the witnesses will sign after the spouses (attesting that they saw both spouses sign), and then the notary will sign after that.
✅ Step 9: Reviewing and updating if necessary
While it might be tempting to file your postnup away in a file cabinet and never think of it again, it can be beneficial to regularly review the agreement and make sure the terms are still applicable. If any significant life changes aren’t reflected in the agreement, like the birth of a child or a drastic change in finances, it may warrant an amendment to the postnup.
You will need to hire attorneys again to make any changes to the postnup, so give your attorney a call if you think you need to make an update.
Final thoughts
Postnups can give you peace of mind, provide you with financial security, and even promote marital harmony. A triple threat, if you will. The steps to getting a postnup are simple—from doing some self-reflecting to notarizing the document; this guide walks you through everything you need to know about the postnup journey. Remember, hiring an attorney is crucial to creating a legally sound agreement that reflects both you and your spouse’s intentions. Happy planning!
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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