Postnups are often seen as a tool of last resort, but that’s not necessarily true–they can be helpful for any couple! There are several different types of postnups that may apply to you. For example, if your relationship is going great, you simply want to outline what should happen to an inheritance, then a single-issue postnup may be for you. On the other hand, if your marriage is already facing challenges, a reconciliation postnup can help to reconcile the relationship. Then there are separation agreements, which are sort of different because they are created incident to divorce. While it’s tempting to believe “it won’t happen to me,” having a postnup in place can provide peace of mind and safeguard your future, no matter what the future holds. Now, let’s talk about the different types of postnups, so you can understand which one makes sense for you.
First…what is a postnuptial agreement?
Think of a postnuptial agreement as a “what if” contract for your marriage. Signed any time after the wedding bells have faded (hence the term “post”- “nuptial”), it essentially says, “Here’s how we’ll handle things if…” The “if” can cover a wide range of situations, depending on where you live. Some states use the term “postnup” broadly, encompassing everything from making up after a rough patch (reconciliation agreement) to figuring out the details of a split (separation agreement). Others take a narrower view, sticking to what we call the “classic” postnup, which we’ll dive into next.
Requirements of a postnuptial agreement
The requirements for enforcing a postnup vary by state. However, there are some general requirements that are true for most states. Here’s what to know:
- Put the postnup in writing and sign it (no oral agreements to one another)
- Provide financial disclosure to both spouses (sharing assets, debts, income, and inheritances)
- Make sure there is no duress, coercion, or undue influence regarding entering into the agreement
- Make sure each party is receiving something out of the agreement (this is called consideration)
- Make sure the agreement is reasonably fair and not totally in favor of one spouse
Remember, each state is different, and states may have more requirements than the above, such as formally requiring legal representation or notarization/witnesses.
The classic postnuptial agreement
When you hear the word “postnuptial agreement,” it usually refers to an agreement you sign with your spouse at any time in the marriage when you plan to remain married. This means you simply missed your opportunity to get a prenup, or you just want to outline your finances with your spouse for no other reason than being practical. The “classic” postnup can include topics about property division, businesses, inheritances, investments, etc. Some states allow you to discuss spousal support, and others do not. The benefits of a classic postnup include clarifications around assets, debts, and income acquired during the marriage, protecting pre-marital assets, protecting inheritances, and more.
The reconciliation postnuptial agreement
A reconciliation postnup is an agreement that spouses sign in exchange for staying married. In other words, if the agreement isn’t signed, they would be filing for divorce. It’s a way to come to terms with a spouse if there are any marital issues. For example, if there were infidelity or addiction issues in the marriage and one spouse wants to make sure they are taken care of if the issue reoccurs.
In some states, the only agreement you can get is a reconciliation agreement. Meaning, if your marriage is perfectly intact, you cannot get a postnup. Those two states are Indiana (See Flansburg v. Flansburg, 581 N.E.2d 430 (Ind. Ct. App. 1991)) and New Jersey (See Pacelli v. Pacelli, 319 N.J. Super. 185 (App. Div. 1999)).
So, what is the real difference between a “reconciliation” postnup and a “classic” postnup? It’s really a difference in intention when entering into the agreement. For a reconciliation agreement, the continuation of the marriage would only happen if the postnup is signed. There will be different clauses in a reconciliation agreement vs. a classic postnup. In addition, a court may analyze them differently, understanding the circumstances under which the agreements were signed.
Reconciliation postnups can help rebuild trust, set clear expectations for the future, addressing specific concerns or past issues, such as infidelity or drug use. Reconciliation agreements are also often suggested by marital counselors as a way to meet in the middle between a couple.
Separation agreement
Some states use the umbrella term “postnuptial agreement” to include separation agreements. A separation agreement is a contract signed between two spouses who are for sure getting a divorce in the near future. This is vastly different from a postnup and often actually has different requirements in different states. A separation agreement works out all of the issues of the marriage and is often incorporated into the final judgment of the divorce decree when the divorce is finalized by the judge.
This is a common practice in the divorce process. The benefits are agreement on the marital terms, such as alimony, property division, etc. This helps speed up the divorce process if the couple can agree without a ton of litigation.
Single issue postnup
Another semi “type” of postnup is a single-issue postnup. This means that it doesn’t cover all aspects of the marriage; instead, it only covers one thing. For example, imagine a couple, Megan and John, who are happily married, but suddenly Megan starts a super successful business and is encouraged by her investors to get a postnup regarding the business interests. So, Megan and John agree to get a postnup that only discusses Megan’s business.
Another example would be a person who learns that they will soon be receiving a large inheritance from a family member. And with the great wealth transfer upon us (all the baby boomers passing down their wealth to Gen Z and Millennials), this one is likely to become more and more popular.
Only addressing one issue, such as businesses, retirement funds, or inheritances, can help cover only the topics that make sense for the couple and can help with enforceability, given that it is only one issue and can be easier for the court to digest, as opposed to every single topic being pre-determined.
Miscellaneous postnups
Courts have also sometimes referred to other random documents as potentially postnuptial agreements. For example, a real case stemming from Washington (Est. of Niggli, No. 84825-9-I, 2024 WL 2815419, at *5 (Wash. Ct. App. June 3, 2024)) where a woman signed off on mortgage lender documents stating she had no claim to the property, which was the agreement that was considered a postnup in this case. Eventually, when the husband passed away and the wife tried to claim the marital home as hers, the husband’s daughter fought it, stating that she signed a “postnup” (a.k.a., the lender documents), and the house should be the daughter’s.
The result? The court found the refinance document deficient because it failed to explicitly state that the wife was waiving her marital rights to the home. Furthermore, there was no indication that she was aware of these rights in the first place. The court emphasized that spouses have specific legal protections, and any agreement waiving those rights must be clear and unambiguous and demonstrate that both parties understand the rights they are relinquishing.
While this case did not consider the mortgage lender documents to be a postnup, it was still referred to as a type of postnup. And this isn’t the only scenario where this has happened! So, beware that things you sign during the marriage could potentially be considered a type of postnup.
The bottom line on the different types of postnups
In essence, a “postnuptial agreement” is a broad term encompassing any contract made between spouses after they say “I do.” This can include “classic” postnups, reconciliation postnups, separation agreements, or single-issue postnups. While it traditionally refers to agreements outlining property division and financial matters, beware because courts may consider other types of documents, such as mortgage refinancing. Just remember to follow the laws in your state regarding postnups to ensure that your agreement stands up in court. 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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