Did you know postnups are on the rise, according to the American Academy of Matrimonial Lawyers? It’s no wonder– because they are a great way for spouses to work out certain aspects of their marriage. And, no, postnups aren’t only about getting a divorce, they’re about clarifying expectations and being transparent with your life partner. Sure, they also set you up with a safety net in case of a divorce, but it’s not the only purpose. They can also address matters during the marriage and in death. So how do you get one? It’s fairly simple. Keep reading to understand, step-by-step, how to get a postnup.
What is a postnup?
A postnup is a contract between two spouses who want to clarify certain financial terms. They can clarify multiple issues or just one. Things people typically include in their postnups include property division, alimony (if allowed in your state), businesses, real estate, inheritances, what happens upon the death of either spouse, and debts. Postnups must follow the laws of the state in which you’re getting the postnup. Each state has its own rules and may be slightly different from the next. For instance, a few states actually require legal representation for a postnup to be valid.
Steps to creating a postnup
Let’s get right into it. Here are the steps to creating a postnup and what you need to know:
Step 1: Understand your state laws
Each state has its own rules about what is required for a postnup and what is allowed in a postnup. There are even a few states that do not allow postnups at all. So, if that’s your state, you will want to speak with a lawyer to see what else you can do for your situation to achieve your goals (i.e., will, trust, moving money around, changing titles, etc.).
Step 2: Understand your goals
Once you know what is required of your state and what can go in a postnup, you can start thinking about what you want to achieve with your postnup. For example, do you want to think about property division, alimony, inheritances, real estate, businesses, debt, etc.? If so, what about the appreciation of such assets? What about the contributions of the other spouse to that asset or debt? There are lots of things to consider.
Step 3: Talk to your spouse and understand your shared goals
If your spouse isn’t already aware of your desire to get a postnup, now’s the time. Communicate your desires to get a postnup to your partner. Start by telling them your goals and what you plan to achieve. Be open, honest, and transparent. Give them space to process and circle back if needed. If you are having any issues, you may want to reach out to a professional. Once they’re on board, you two can start discussing individual and shared goals.
Step 4: Decide how you will get a postnup
You can get a postnup online, or you can go the traditional way by contacting a lawyer. It is generally not advised that you write a postnup yourself as this can lead to an unenforceable contract and unwanted consequences for your assets. DIY postnups are “dangerous” because non-lawyers generally aren’t aware of the pitfalls of postnups, such as what is deemed unconscionable in their state, what consideration is appropriate, and what formalities are required.
Step 5: Draft and negotiate the postnup terms
The next step is to have the postnup drafted and negotiate any terms. Both spouses should be comfortable with the terms and not pressured into signing terms that they don’t want. Remember–this is a binding agreement, and you’ll be required to abide by its terms in the event of a divorce, so consider them carefully.
Step 6: Disclose finances
Don’t forget about financial disclosure. This is a crucial aspect of postnuptial agreements and required for a valid and enforceable agreement in virtually all states. This involves sharing financial information between spouses. This means each spouse must write down their income, assets, debts, and future inheritance details in a financial schedule and share it with their spouse. Sometimes, it may be prudent to share actual financial documents, as well.
Step 7: Sign and notarize the postnup
Once the postnup is drafted and negotiated, you’ll need to execute the contract. This means signing it in the way your state requires it to be signed. Some states require witnesses, others require witnesses AND notarization. Regardless, getting your postnup notarized is a good idea. Notarization is simply signing the document in front of a Notary Public, you can do this online or at a bank, UPS, etc.
Step 8: Safely store your postnup
There is no need to file your postnup anywhere. Instead, you’ll need to keep three (or more) original copies and store them somewhere safe in case you ever need to use it one day in a divorce.
Step 9: Celebrate and look ahead
And voila! You did it! There’s nothing left to do but cheers your spouse to a lifelong and happy marriage. If you ever want to change anything in your postnup, you’ll need to speak with a lawyer to create an amendment to the draft. If you ever want to revoke the postnup, meaning you want the postnup to be void, you’ll need to speak to a lawyer to help you execute a revocation agreement.
How to understand your goals for a postnup
If you read the above guide and are wondering what your goals are for postnup, here are some things to consider and ask yourself:
- How do you feel about property division? What should be kept separate, and what should be kept marital/joint?
- What about alimony? Keep in mind, not every state allows alimony clauses in postnups.
- Think about businesses, specific pieces of real estate, and other property. How do you want those assets to be held?
- What about future inheritances you expect to receive?
- What about inheriting assets from one another when you die? Spouses can often take a share of their deceased spouse’s estate, even if the deceased spouse wrote them out of the will, but you can waive this right in a postnup.
- What about debt? Who should be responsible for certain debts?
- What about the appreciation of assets? Should that be separate?
- What if you exchange a piece of property that is considered separate for something new? Should that be separate property?
There are hundreds of questions to consider, depending on your specific situation, the above are just a few things to get your mind working.
Common misconceptions about postnups
Before we wrap things up, let’s clear the air about some common postnup misconceptions. While it’s true that a handful of states don’t recognize them, postnups are generally enforceable in most states in the US as long as they’re done right. And forget the idea that they’re just about divorce! Postnups can also cover things like financial responsibilities within the marriage and what happens to assets after one spouse passes away.
Perhaps the biggest myth is that postnups are the first step toward divorce. While that can be true in some cases, it’s not the default case. Some states even call them “reconciliation agreements” because they can actually keep a marriage together. By laying out clear expectations, setting boundaries, and promoting financial transparency, postnups can build a stronger foundation for a lasting marriage.
Final thoughts
Well, there you have it, folks. This is a step-by-step guide on creating a postnup. We do not recommend that you DIY this, as it can lead to your agreement being thrown out and then having unwanted financial consequences for your assets in a divorce. Remember, postnups are about bringing you and your spouse together, not pulling you apart, so speak with your spouse candidly about your individual goals and discuss what your shared goals are. Happy postnup 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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