If you’re wondering whether or not a postnuptial agreement (“postnup”) is enforceable in your state, then look no further. We’ve got all of the legal details you need to know about which states enforce postnups and which states do not. By “enforce,” we mean that a judge will uphold your postnup. If a postnup is NOT enforceable in a state, it means that a judge will simply ignore your postnup in a divorce and make its own decision on your property, debt, and alimony. Spoiler alert: Postnups are generally enforceable in the vast majority of states. And the law on postnups is constantly evolving, as it is a relatively new legal concept, so things can always change in your state.
Where postnups are less likely to be enforced
Let’s start with the states that are very likely not to enforce postnuptial agreements. We say “very likely” because the law is always changing, and there is a national trend towards enforcing postnups, so there’s always time for these states to change their minds! Without further ado, Iowa, Oklahoma, Nebraska, and the three states we’ve concluded are unlikely to enforce postnups. Let’s dive into the “why” and the sources for our conclusions below.
Iowa
First off, courts in Iowa flat-out state that you cannot amend your prenuptial agreement in Iowa. (Hansen v. Hansen, 924 N.W.2d 873 (Iowa Ct. App. 2018), stating prenups may be revoked but not amended). This means you can get a prenup, but if you want to change the terms… too bad. You can only revoke it. Secondly, the Iowa Supreme Court in Marriage of Cooper, 769 N.W.2d 582 (Iowa 2009), explicitly called out the fact that there is no express authorization of postnuptial agreements. With the combination of these two cases, it’s clear that the future of Iowa postnups is not very clear nor advantageous toward an enforceable postnup, but it’s not impossible! There may be future case law that comes out overturning Hansen or legislation explicitly stating postnups are enforceable.
Oklahoma
A case known as Hendrick v. Hendrick, 976 P.2d 1071 (Okla. Ct. App. 1998) held that postmarital agreements are not authorized by Oklahoma law. It specifically noted that a prenup that is amended is no longer a prenup, so you can also not modify your prenup in Oklahoma. However, there are some courts that have actually held postnups to be enforceable. In Boyer v. Boyer, 925 P.2d 82 (Okla. Ct. App. 1996), the court held that postnups are enforceable as long as they only talk about specific topics, are just and equitable, and have mutual consent and consideration. As you can see, courts are torn on this matter, and it’s risky business to enter into a postnup in Oklahoma.
Nebraska
Nebraska’s courts have come right out with it: “Nebraska statutes do not authorize postnuptial agreements to allocate parties’ property rights upon separation or divorce unless such agreements are concurrent with a separation or divorce.” Devney v. Devney, 886 N.W.2d 61 (Neb. 2016). In plain English, this means that unless you’re divorcing right now, you can’t make an agreement with your spouse.
Where postnups are generally enforceable, but harder to get
Now, let’s talk about a few states where postnups are enforceable but have a few more rules surrounding them: Louisiana, Indiana, and New Jersey. In these states, it is possible to get a legitimate postnup, but there are just more restrictions/rules.
Indiana
Indiana says postnups are okay…but only if the purpose is for reconciliation. In fact, they call postnups “reconciliation agreements” in the state because that’s all they’re for–reconciling. Let’s put it this way, you can only get a postnup in Indiana if, without the contract, you would be getting a divorce. The whole contract hinges on the fact that it’s bringing you back together. You have to be on the rocks, in choppy waters, experiencing turbulence–whatever you want to call it. A happily married couple is not able to enter into a postnup in the Hoosier state. (See Flansburg v. Flansburg, 581 N.E.2d 430 (Ind. Ct. App. 1991) for the fine print on this).
New Jersey
New Jersey is similar to Indiana in that the only enforceable agreement is a reconciliation agreement–which means the couple must be on the brink of divorce and decide to “reconcile” with the postnup. In other words, you must be able to show a true breakdown of the marriage when entering into a postnup. In addition, courts have stated that postnups do not get a presumption of enforceability like prenups do in New Jersey. This just means they’re harder to enforce overall. (See Steele v. Steele, 467 N.J. Super. 414 (App. Div. 2021) and Pacelli v. Pacelli, 319 N.J. Super. 185, 725 A. 2d 56 (1999) for the fine print).
Louisiana
You can get a postnuptial agreement, but you’ll have to work for it… That means you’ll have to actually petition a court to get approval for a postnup before actually getting one (La. Civ. Code art. 2329). The court may grant approval if it’s in the parties’ best interests and if they truly understand the legal ramifications of getting one.
Where postnups are generally enforceable
If you don’t see your state above, congrats! You’re in a state that likely upholds postnups! However, some states have stronger laws on them than others, and nothing is guaranteed in any state. For example, there are several states with zero legislation on postnups and very few cases (if any) on how to treat postnups and if they’re enforceable. What does that mean? This means that one day, your state legislature could introduce a new bill, or the court system could hear a case on postnups and decide that postnups are not enforceable.
Don’t panic, though–we find this unlikely as the major trend in the law across the nation is to enforce the agreements as long as they follow either: basic contract principles, the same principles as prenuptial agreements, or a heightened level of principles carved out just for postnups.
The bottom line
If you live in Iowa, Oklahoma, Nebraska, Louisiana, New Jersey, or Indiana, and you’re looking for a postnuptial agreement, you’ll want to contact an attorney in your state to see what your options are. There may be something else that you can do to meet your legal needs for a marital arrangement. And if you are in ANY other state besides those six, then there’s a good chance your state enforces postnups.
The growing momentum towards recognizing postnuptial agreements is incredibly encouraging! We’re optimistic that clear and consistent legislation will soon emerge across the country, providing couples with greater clarity and confidence in creating enforceable postnups.
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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