Ready to unlock the mysteries of postnuptial agreements? (Kidding! There’s really nothing mysterious about them!) Most states allow you to address similar topics in a postnup as you would in a prenup, but there are some exceptions. We’ll unravel these state-specific rules and provide a clear understanding of how postnups can help you define your financial future. Let’s dive in!
Some states say you cannot include spousal support (i.e., alimony) clauses in your postnup
Certain states say that including alimony provisions in postnuptial agreements is a no-no. This restriction may stem from a desire to protect spouses from unfair outcomes or to prevent people from becoming reliant on public assistance. Here are the states where alimony provisions in postnups are currently unenforceable:
- California (Cal. Fam. Code § 1620)
- North Carolina (Motley v. Motley, 255 N.C. 150 (1961))
- Nevada (Nev. Rev. Stat. § 123.080)
- South Dakota (S.D. Codified Laws § 25-2-13)
- Montana (Mont. Code § 40-2-303)
- New Mexico (N.M. Stat. § 40-2-8)
- And potentially more–the law is always evolving, and this is a relatively new area of law!
Several other states also say that if you include a spousal support clause in your postnup, it will still be subject to court approval upon divorce. This means it will be scrutinized and not automatically enforced, as would other clauses.
Alimony clauses
For those states that do allow alimony provisions, this means you can waive your right to alimony altogether or provide for a specific amount of alimony. For example, if you want to ensure you get alimony one day, you can include in a postnup a provision stating how much your partner will pay you in alimony. Or, if you want to ensure you never pay alimony one day, you both can agree to a mutual alimony waiver, saying neither party will be required to pay it.
Property division
A major driver of postnuptial agreements is the desire to categorize who owns what and divide it up in a divorce. In every state where postnups are generally enforceable, so is dividing up property within it. This includes stating which assets and debt are considered Marital/Community Property and which are considered Separate Property. Then, you can decide how you want to divide up the Marital/Community Property. Do you want it to be 50-50, split according to contribution, or split in a certain amount? Maybe one thing is split 50-50, and something else is split according to each person’s contribution to it.
Elective share waivers
What is an “elective share waiver,” you ask? It’s when both spouses waive their right to take a portion of their deceased spouse’s estate. Why does this matter? Well, because in many states, spouses can take a third or more of their spouse’s estate when they die…even if they were written out of the will. Yes, you read that right. It is typically to prevent accidental disinheritance, but it can sometimes do the opposite and provide for a spouse who wasn’t meant to be provided for.
Let’s use an example to demonstrate this conundrum: John had three kids from a previous marriage. At the ripe age of 75, he remarries his second wife, Mary. Mary also has three kids from a previous marriage and has her own money. John wants to ensure Mary is not in his will because he wants all of his assets to go to his three kids when he dies. With an elective share waiver in a prenup or postnup, John can ensure that Mary doesn’t have the right to take a portion of his estate upon his death.
Inheritances and gifts
Many people decide to get a postnup because they either learned that they will receive a future inheritance or have already received one and want to ensure it is protected in case of divorce. For example, imagine your Great Aunt Joan tells you (out of the blue) one day that she’s going to pass down $500,000 to you. She has no kids of her own, so it only makes sense that it goes to you! Well, great, but now what happens to that money? Well, without a marital agreement, it can be tricky to say exactly. If it gets commingled or if your state law says that marital, then you could lose a percentage of this inheritance. With a valid and enforceable postnup, you can ensure that everything is protected in any scenario! (Note: this applies to gifts too–so if Uncle Gary decides to bless you with $100,000 one day for no good reason, you can protect that as well).
Miscellaneous clauses
That’s not all, folks! There’s so much more you can put into a postnup. You can include pet custody clauses, marital home clauses, social media clauses, counseling clauses, infidelity clauses, business clauses, confidentiality clauses, tax filing clauses, and much more. Basically, you can include anything that doesn’t go against public policy or your state’s laws.
What you cannot include
No child custody or child support matters. Generally, most states agree that children’s matters do not belong in marital contracts. It may seem counterintuitive, but the reason behind it is that child support and custody are based on the best interests of the children at the time of divorce, not at some other time before a divorce even happens! And, what the parents think is best may not actually be best.
Bottom line on what you can include in a postnuptial agreement
Most states agree that whatever can go into a prenup, can also go into a prenup. Property division is one of the main reasons couples get a postnup– to ensure their real estate, investment accounts, inheritances, and other property remain separate. In addition, there are a few states that say there are some restrictions as to what can go into a postnup, such as with spousal support. Just make sure you are aware of what your state’s requirements are regarding postnup contents and that you comply with those laws. 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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