Formalize a financial agreement during marriage: Postnuptial Agreement
What we’ll cover
What is a Postnuptial Agreement?
A Postnuptial Agreement, also known as a Postnup or Post-Marital Agreement, is a two-way contract made by a married couple. Postnuptial Agreements help provide each partner with a sense of security and could facilitate a smooth resolution if a conflict arises by establishing clear expectations regarding finances and assets.
Postnuptial Agreements are intended to protect both spouses by outlining each person's existing assets and debts, defining how finances will be managed during the marriage, and planning what will happen if the partners choose to part ways, either voluntarily or by death.
Postnups are not just for the wealthy. They are suitable for any married couple who wants to have more control over their finances. Rocket Lawyer can help you create your Postnuptial Agreement with a few simple questions – get started now.
When to use a Postnuptial Agreement:
- You are getting married and want to protect your existing assets as you enter the marriage.
- You are getting married and want to be proactive about any potential legal issues one day regarding finances or assets.
Sample Postnuptial Agreement
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This ("Agreement") is made , by and between (""), an adult residing in , , and (""), an adult residing in , , in consideration of the existing marriage of the above-named parties.
RECITALS. This Agreement is made on the basis of the following facts:
. The parties were legally married to each other on , in in County, .
. Both parties have children together.
. The parties desire to define their rights and responsibilities regarding property and financial matters to the extent these can be foreseen.
AGREEMENT
Following the marriage entered into by and between the parties and other valuable consideration as described below, the parties mutually agree to the following:
f. Pension Benefits. Each party reserves the right to retain as his or her sole and absolute separate property, the entire interest in pension benefits now vested, and the right to manage, control, transfer, and convey all such property and dispose of the same by will, beneficiary designation or otherwise, without any interference from the other. The parties acknowledge that this Agreement shall constitute an effective waiver of any rights in the other's pension benefit plans. Furthermore, each party agrees to execute whatever additional waiver document may be necessary or useful to confirm such waiver of rights to the other party's pension benefit plans.
f. Each party waives the right of reimbursement under Family Code 2640, for the party's separate property contributions to the acquisition of property of the community property estate, and the party's separate property contributions to the acquisition of property of the other party's separate property estate, regardless of tracing to the source.
g. Each party waives the right of reimbursement under Family Code 2640, for the party's separate property contributions to the acquisition of property of the community property estate, and the party's separate property contributions to the acquisition of property of the other party's separate property estate, regardless of tracing to the source.
presently owned by presently owned by leased in the name of shall not be affected by this Agreement. shall shall be considered the community property of both parties.shall be considered the sole and separate property of .
The expenses associated with the maintenance of the residence shall be paid as follows:
. payments shall be made
. Payment of all real estate taxes shall be made
. Insurance premiums for such residence shall be paid
.
. LIVING EXPENSES. It is the expectation of the parties that their personal earnings, and the income from the assets and investments of either or both parties, shall be used for joint household expenses or other joint purposes. However, such use shall not be construed to imply joint ownership of any assets owned by either party.
Each party agrees to contribute into a joint checking account out of which common living expenses will be paid.
Common living expenses include:
- food
- utilities
- household supplies
- household furnishings
- phone service
- cable television
- entertainment
- fitness club membership
- clothing
- personal items
- credit cards
- student loans
- car payments
- car fuel
- car maintenance
- car insurance
- renters insurance
- income taxes
- property insurance
- medical insurance
- medical expenses
and shall be paid from the joint checking account.
Nothing in this Agreement shall limit the obligation of each party to contribute such further amounts as are reasonable and necessary from time to time for the above purposes.
At any time that the balance of this account exceeds or is greater than the amount reasonably necessary to pay these common expenses, then such excess shall be transferred to a joint savings account. Such savings account shall be used for whatever purposes are agreed upon by the parties. Items purchased through joint accounts shall be jointly owned.
From their respective separate accounts, the parties shall pay for their own:
- food
- utilities
- household supplies
- household furnishings
- phone service
- cable television
- entertainment
- fitness club membership
- clothing
- personal items
- credit cards
- student loans
- car payment
- car fuel
- car maintenance
- car insurance
- renters insurance
- income taxes
- property insurance
- medical insurance
- medical expenses
During the course of the marriage, including medical expensesWith respect to credit card accounts, Purchases which constitute joint expenses shall be paid for from joint accounts.
The parties agree and understand that nothing in this Agreement shall preclude them from acquiring property interests during the course of their marriage as joint tenants with rights of survivorship or as tenants in common with undivided interests. Additionally, nothing in this Agreement shall preclude them from making binding transfers of real or personal property to the other at any time during the marriage.The parties agree that all property, whether real or personal, acquired by either of them after the marriage ceremony using joint funds, shall be owned
. TAXES. Nothing in this Agreement shall be construed as waiving (i) any rights of the parties to report their income for federal or state income tax purposes in the same manner as permissible for any other spouses, (ii) any rights provided for spouses under the federal gift tax laws with reference to gifts, or (iii) any rights under the federal estate tax laws with reference to any transfer to which such laws may apply. If the parties elect to file federal and state income tax returns on a joint, rather than on a separate, return with the other, this election shall not create any community property or any other rights or interests in contravention of this Agreement. If the parties elect to file a joint income tax return during their marriage, each shall be liable for any and all taxes associated with his/her separate property. jointly.separately.
agrees that the following items will be transferred to as one hundred percent 's sole and separate property. acknowledges and agrees that this transfer negatively affects 's rights in this property.
agrees that the following items which are currently the sole and separate property of will be transmuted into community property shared with .
has the following child:
renren, as long as married to , shall provide a home and reasonable support for the health, education, maintenance and support of , child(ren) of , without establishing any legal requirement to do so upon separation or dissolution of the marriage. is not and shall not be liable for the necessary expenses associated with the health, education, maintenance, and support of 's child(ren). , as long as married to , shall provide a home and reasonable support for the health, education, maintenance and support of , child(ren) of , without establishing any legal requirement to do so upon separation or dissolution of the marriage. is not and shall not be liable for the necessary expenses associated with the health, education, maintenance, and support of 's child(ren). The parties will jointly provide a home and reasonable support for the health, education, maintenance and support of any children born to or adopted together by them during their marriage, without establishing any legal requirement to do so upon separation or dissolution of the marriage.
The parties will jointly provide a home and the other costs of health, education, maintenance and support for any children born to or adopted together by them during their marriage, without establishing any legal requirement to do so upon separation or dissolution of the marriage.
the Uniform Premarital Agreement Act, which also governs postnuptial agreements, and
. Each party shall have an equal interest in all property acquired by either party during the course of the marriage (except property that is merely the result of an increase in the value of property owned separately by the parties prior to the marriage, as listed on the attached schedules).
. Each party shall have a proportionate interest in the increase in value (during the marriage) of the homestead real estate, that proportion to reflect the relative values of the contributions, both monetary and in-kind, toward the necessary household expenses and childcare/household duties during the course of the marriage.
. All savings, investments, retirement accounts, and all property listed on the attached schedules as separate property (owned by a party prior to the marriage) shall remain the separate property of that party who brought such property into the marriage, including any appreciation, income, or other increase to such property.
. All joint property and accounts shall be divided equally.
. Any income tax liability, refund, or benefit in the year of the separation and/or dissolution of marriage shall be allocated prorata to the parties based upon the data which caused the tax result.
. The parties shall have joint custody of any children born to or adopted into the marriage. Such joint custody entitles each party to equal visitation time, or time which is otherwise fair and equitable.
.
Each party has been self-supporting for a period of time prior to the marriage. Nothing in this Agreement shall be construed so as to waive the right of either party to inherit from the other or to forego any right of election in the estate of the other. Each party agrees that if one party survives the death of the other, such party will make no claim to any part of the real or personal property of the other. In consideration of such promise and in consideration of the marriage, each party knowingly, intentionally, and voluntarily waives and relinquishes any right of dower, curtesy, homestead, inheritance, descent, distributive share, or other statutory or legal right, now or later created, to share as surviving spouse in the distribution of the estate of the other party. The parties agree that it is their mutual intent that neither shall have or acquire any right, title, or claim in and to the real or personal property of the other by virtue of the marriage. The estate of each party in the property now owned by either of them, or acquired after the date of marriage by either of them, shall descend to or vest in his or her heirs at law, legatees, or devisees, as may be prescribed by his or her Last Will and Testament or by the laws of the state where the decedent was domiciled at the time of death, as though no marriage had taken place between them.
However, the and shall pass to the survivor
The parties understand and agree that nothing in this Agreement shall prevent them from naming the other party as a beneficiary in his or her Last Will and Testament, life insurance policy or retirement plan, which transfer, bequest, or designation shall take precedence over any other provision of this Agreement.
. ADDITIONAL INSTRUMENTS. Without any additional consideration, each party shall promptly, at the request of the other, execute, acknowledge and deliver from time to time whatever additional instruments may be required in order to accomplish the intent of this Agreement.
Any controversies or disputes arising out of or relating to this Agreement will be submitted to mediation in accordance with any statutory rules of mediation. If mediation does not successfully resolve the dispute, the parties may proceed to seek an alternative form of resolution in accordance with any other rights and remedies afforded to them by law. Any controversies or disputes arising out of or relating to this Agreement will be resolved by binding arbitration under the rules of the American Arbitration Association. The arbitrator's decision will be final, and any judgment may be entered upon it by any court having proper jurisdiction.Any controversies or disputes arising out of or relating to this Agreement will be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues will be submitted to final and binding arbitration under the rules of the American Arbitration Association. The arbitrator's award will be final, and judgment may be entered upon it by any court having proper jurisdiction.
. FULL DISCLOSURE. Each of the parties (i) is of lawful age, (ii) is competent to contract, (iii) was free to enter into the marriage (iv) has full knowledge of the other party's property, debts and income, and (v) voluntarily enters into this Agreement. Additionally, each party has full knowledge of the terms and provisions of this Agreement. Specifically, the parties acknowledge and agree that they have disclosed to the other party (prior to the signing of this Agreement), the extent and probable value of their respective individual property interests as of the date of this Agreement, by delivering schedules to the other party that reflect those interests, and which schedules were signed by the respective owner and by the party receiving the schedule. The parties specifically acknowledge receipt of the above schedules, which are understood and agreed by the parties to represent a full and complete listing of their respective property interests as of the date of this Agreement.
. MISCELLANEOUS PROVISIONS.
a. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, administrators, personal representatives, successors, and assigns.
b. This Agreement sets forth the entire Agreement between the parties with regard to the subject matter of this Agreement. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, and representations with respect to the subject matter of this Agreement are waived, and merged into this Agreement.
c. If any of the provisions of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
d. Each party acknowledges that they have been advised to seek the advice of a separate lawyer and has had the opportunity to seek the advice of a separate lawyer.
e. This Agreement may be altered, amended, modified, revoked or canceled only by an instrument in writing, executed by and with notarial acknowledgements of the signatures, and by no other means.
Dated ____________________, _____, at , .
__________________________________
__________________________________
On this _____ day of ____________________, _____, before me, ______________________________, the undersigned officer, personally appeared and , known to me (or proved to me on the oath of ______________________________) to be the persons who are described in and who executed the within and foregoing instrument, and acknowledged to me that they executed the same.
Before me, a Notary Public (or justice of the peace) in and for said county, personally appeared the above named and , who acknowledged that they did sign the foregoing instrument, and that the same is their free act and deed. In testimony whereof, I have hereunto subscribed my name at ________________________________, this _____ day of ____________________, _____.
The foregoing instrument was acknowledged before me this _____ day of ____________________, _____, by and .
The foregoing instrument was acknowledged before me, by means of ☐ physical presence or ☐ online notarization, this _____ day of ____________________, _____ by and , who are personally known to me or who have produced ________________________________ as identification.
This instrument was acknowledged before me on this _____ day of ____________________, _____ by and .
On this _____ day of ____________________, _____, before me personally appeared and , to me known to be the persons described in and who executed the foregoing instrument, and acknowledged that they executed same as their free act and deed.
On this _____ day of ____________________, _____, before me, ________________________________, personally appeared and , known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument and acknowledged that they executed the same as for the purposes therein contained.
On this _____ day of ____________________, _____, before me, the undersigned, Notary Public for the State of Vermont, personally appeared and , to me known (or to me proved) to be the identical persons named in and who executed the above , and acknowledged that such persons executed it as such persons' voluntary act and deed.
The foregoing instrument was acknowledged before me this _____ day of ____________________, _____, by and .
In witness whereof I hereunto set my hand and official seal.
Notary Public
Signature of person taking acknowledgment
_________________________________
Name typed, printed, or stamped
Title (and Rank)
_________________________________
Title or rank
My commission expires ____________
_________________________________
Serial number (if applicable)
Serial number, if any
Notary Address:
_________________________________
_________________________________
_________________________________
_________________________________
EXHIBIT A
FINANCIAL INFORMATION
| Assets | Value |
| House |
| Other Real Estate |
| Vehicles |
| Household Goods |
| Notes |
| Accounts Receivable |
| Business Property |
| Assets | Account Name, Number, Address, Value |
| Stocks |
| Bonds |
| Checking Accounts |
| Savings Accounts |
| Certificates of Deposit |
| IRAs |
| Retirement Plans (Keogh, 401k, etc.) |
| Life Insurance (cash value) |
| Total Assets |
| Liabilities/Debts | Account Name, Number, Address, Amount |
| Real Estate Mortgage |
| Home Equity Loans |
| Other Mortgages |
| Credit Card Debt |
| Vehicle Loans |
| Total Liabilities/Debts |
| Net Worth |
Annual Income
| Total Annual Income |
I verify that the above information is true and correct to the best of my knowledge.
Signed on this _____ day of ______________________________, _____.
__________________________________
I acknowledge receipt of a copy of this exhibit.
__________________________________
EXHIBIT B
FINANCIAL INFORMATION
| Assets | Value |
| House |
| Other Real Estate |
| Vehicles |
| Household Goods |
| Notes |
| Accounts Receivable |
| Business Property |
| Assets | Account Name, Number, Address, Value |
| Stocks |
| Bonds |
| Checking Accounts |
| Savings Accounts |
| Certificates of Deposit |
| IRAs |
| Retirement Plans (Keogh, 401k, etc.) |
| Life Insurance (cash value) |
| Total Assets |
| Liabilities/Debts | Account Name, Number, Address, Amount |
| Real Estate Mortgage |
| Home Equity Loans |
| Other Mortgages |
| Credit Card Debt |
| Vehicle Loans |
| Total Liabilities/Debts |
| Net Worth |
Annual Income
| Total Annual Income |
I verify that the above information is true and correct to the best of my knowledge.
Signed on this _____ day of ______________________________, _____.
__________________________________
I acknowledge receipt of a copy of this exhibit.
__________________________________
| - | All earnings and income of |
| - | The entire interest in retirement or pension benefits now vested, or that become vested in the future, in accounts named in Exhibit 'B' of this Agreement belonging to |
| - | The marital residence property at , , |
further understands, acknowledges, and agrees that his/her financial interest in the assets set forth below is adversely affected in that is agreeing to transmute all of his/her separate property interest in the following assets to the community estate of and as one hundred percent community property.
| - | The marital residence property at , , |
further understands, acknowledges, and agrees that his/her financial interest in the assets set forth below is adversely affected in that is agreeing to transmute all of his/her separate property interest in the following assets to as one hundred percent 's sole and separate property.
| - | All earnings and income of |
| - | The entire interest in retirement or pension benefits now vested, or that become vested in the future, in accounts named in Exhibit 'A' of this Agreement belonging to |
| - | The marital residence property at , , |
further understands, acknowledges, and agrees that his/her financial interest in the assets set forth below is adversely affected in that is agreeing to transmute all of his/her separate property interest in the following assets to the community estate of and as one hundred percent community property.
| - | The marital residence property at , , |
further understands, acknowledges, and agrees that his/her financial interest in the assets set forth below is adversely affected in that is agreeing to transmute all of his/her separate property interest in the following assets to as one hundred percent 's sole and separate property.
Each party must have seven days between the time that each party received the agreement and the time that the agreement is signed. This is to allow both parties to thoroughly review the agreement and seek separate and independent legal counsel. This requirement must be signed off by both parties in the agreement.
In order for the to be enforced in California, the court must be able to find that each party was independently represented by separate attorneys. Each representing attorney may sign the certificate of independent legal review at the end of this agreement.
Either spouse may relinquish this right to independent counsel, but this requires the spouse to submit a separate written waiver. If one spouse is not represented by an attorney (and has signed a separate written waiver) the court must be able to find that the party (1) was fully informed of the terms of the agreement and the rights and obligations they were was relinquishing by signing the agreement, and (2) was proficient in the language in which the explanation of their rights was conducted and in which the agreement is written.
About Postnuptial Agreements
Learn about how to formalize a financial agreement during marriage
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Why make a Postnuptial Agreement and what to include in it?
A Postnuptial Agreement is an agreement between prospective spouses, made in contemplation of marriage. They can be made at any time during the marriage and do not have to be made right after the wedding. Couples sometimes create postnups if their marriage is not on solid ground, or if they end up having children together in a second marriage and want to make sure children from previous marriages are considered in any future plans.
Either way, enough time should be permitted to allow both parties to consult their separate legal counsel and to sufficiently consider the agreement. Otherwise, one party may later claim that the agreement is unenforceable because it was misleading or signed under pressure.
From a legal perspective, marriage can be viewed similarly to a business arrangement. Business transactions should not be entered into without documenting the terms of the arrangement in writing. Likewise, the parties in a marriage should carefully consider how issues will be handled during and after a marriage. Without an agreement, the probate court (upon death) or the divorce court will impose an agreement on the parties in those circumstances.
Property Rights
A number of issues can be clarified in a Postnuptial Agreement pertaining to property rights. For example, the agreement can specify how property -- previously owned or acquired during the marriage -- will be distributed upon divorce or death. Other items which may be addressed include:
- The handling of debts and expenses.
- Rights to inherit from each other.
- Rights to be named as the beneficiary of life insurance or retirement plans.
- Any other matter regarding the parties' rights and obligations, as long as the agreement does not violate public policy concepts or criminal laws.
Certain provisions are not enforceable
Certain agreement provisions may not be enforceable, such as provisions relieving one party from paying child support or alimony. State law or public policy may prevent a court from enforcing such provisions. Because of differences between the states, the drafting of such provisions should be done in consultation with a lawyer.
If you have any questions regarding your Postnuptial Agreement, don’t hesitate to ask a lawyer.
Postnuptial Agreement FAQs
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Why should I make a Postnuptial Agreement?
There are many reasons why a married couple might decide to make a Postnuptial Agreement. Here are a few examples:
- One or both spouses have children from a previous marriage.
- One spouse owns a business with other people.
- One spouse is giving up their career in support of the family.
- One or both spouses wish to protect assets acquired before marriage.
- One or both spouses wish to protect family-owned or inherited properties.
- One spouse has taken on a lot of debt before or during the marriage.
- One spouse has a much higher net worth or earning potential.
- Both spouses wish to avoid default divorce laws.
- Both spouses wish to make agreements while they are on good terms.
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Who needs a Postnuptial Agreement?
Any lawyer, accountant, or survivor of a challenging divorce might say that every married couple can benefit from having a Postnuptial Agreement in place. In reality, the decision to make a Postnup is up to you and your spouse. An uneven agreement could have detrimental long-term consequences, so it is a good idea to ask a Legal Pro to review your agreement before you sign.
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What is included in a Postnuptial Agreement?
A Postnuptial Agreement template usually includes statements about how property (separately and jointly held), debts, and taxes will be handled should the couple part ways, either through divorce or death. The agreement also covers expectations for economic and non-economic support in the event of a divorce or disability. Each person typically discloses their full financial information, including income, assets, and debt, as part of the agreement.
The agreement can be ended at any time by following the instructions provided in the “revocation” section of the Postnup. When you create your Postnuptial Agreement with Rocket Lawyer, your agreement will include a revocation clause that complies with your state's requirements.
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What is the difference between a Prenuptial and a Postnuptial Agreement?
A Prenuptial Agreement is a contract that is signed and notarized (if your state requires it) by a couple planning to get married. A Postnuptial Agreement is essentially the same as a Prenup, except that the contract is signed after the couple is married. Both agreements cover the couple's separate and joint property ownership, assets, and debts should the marriage end in divorce or death. Separate property owned before the marriage may or may not change status once the couple is married, depending on the couple's state laws, and this may be a reason to consult with a Legal Pro before making either agreement.
A Postnuptial Agreement can be made at any time during the marriage. It does not have to be made right after the wedding. Couples sometimes create Postnups if their marriage is not on solid ground, or if they end up having children together in a subsequent marriage and want to make sure children from previous marriages are considered in any future plans.
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How much does a Postnuptial Agreement cost?
The cost of a Postnuptial Agreement can vary widely, roughly between $550 and $10,000, if an attorney is drafting one for you. The exact price in this instance depends on the prevailing attorney rates in your area and the relative complexity of your agreement. Customizing your own agreement and having a Legal Pro review it for you may work just fine if you know what you want and your situation is relatively simple. This is an option that is cost-efficient, and one that Rocket Lawyer can provide.
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Should I sign a Postnuptial Agreement?
Whether or not you should sign a Postnuptial Agreement is dependent on your particular situation. If you are having doubts about signing a Postnup but are feeling pressured to do so, you might want to consult with a Legal Pro to make sure you are not giving up important spousal rights by signing it. In some states, being forced or coerced into signing a Postnup makes the agreement invalid. Likewise, a Postnup that is not properly executed (signed and notarized in some states) is not enforceable, which means there is no legal agreement between you and your spouse.
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Do I need a Postnuptial Agreement lawyer?
Postnuptial Agreements may significantly affect the finances and property ownership rights of the couple entering into the agreement, as well as any children and grandchildren they have or may have together or through separate, previous marriages. If you are considering a Postnup, it may be wise to have a Postnup lawyer review and answer questions about your agreement before signing, or for each of you to have your own lawyers as a way to ensure each of your interests is being independently represented.
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