Postnuptial Agreements

Are postnups a trend to get a marriage on track?

Couple Signing Contract
Don Klumpp/The Image Bank/Getty Images

Are you considering a postnuptial agreement? Postnuptial agreements are suggested on occasion by some marriage therapists and attorneys to promote harmony in a troubled marriage. Here we explore the definition of a postnuptial agreement, the reasons for obtaining a postnuptial agreement, and whether or not these agreements are valid. Finally, being able to civilly talk about and negotiate this agreement with your partner may pose a challenge to your relationship.

What is a Postnuptial Agreement?

A postnuptial agreement is a voluntary marriage contract between spouses that is created after they are legally married. This is opposed to the more common legal contract, a prenuptial agreement, that is created prior to marriage. When deciding to create such a document, it is important that each of you have your own legal counsel before signing a postnuptial agreement.

Why Should a Married Couple Create a Postnuptial Agreement?

Many married couples create postnuptial agreements to help resolve issues in their marriage by removing a source of disagreement over finances, assets, children, chores, etc. Postnuptial agreements are also used by spouses, commonly called "lifestyle agreements," as a way of controlling certain behaviors, such as adultery or over-spending.

Another reason to create a postnuptial agreement is if the financial status of either spouse changes after their wedding.

Changes in a career, receiving an inheritance, experiencing a change in investment income, selling a business, and so on. can all be reasons to seek a postnuptial agreement.

For some couples, a postnuptial agreement can stop conflict and promote harmony in their marriage. Many probably view this as a last resort.

It is better to try other ways to resolve the conflict before seeking a postnuptial agreement. If one partner is turned off or insulted by the idea, this can create conflict in and of itself. 

What is the Validity of a Postnuptial Agreement?

Historically, postnuptial agreements were not considered valid.

  • "The common law in the USA during most of the 1800s was that a husband and wife could not make a legally binding contract between themselves. The reason for this rule is that the identities of two parties (i.e., husband and wife) merged into one at the time of the marriage, and the law does not recognize a contract with just one part. Furthermore, a married woman could not make a valid contract with anyone (including her husband), except regarding her separate property." Source: rbs2.com (pdf file)

Currently, the validity of postnuptial agreements varies from locale to locale. Remember, it is vital that each of you contact a separate attorney before signing any postnuptial agreement. The attorney can advise you as to the laws of your state. 

There are three criteria that judges use to determine the validity of a postnuptial agreement:

  • Has there been full disclosure of assets in the postnuptial agreement? 
  • Has there been a lack of duress in the creation of the postnuptial agreement? 
  • Is the postnuptial agreement fair to both parties?

A postnuptial agreement can also be referred to as:

  • Post-marriage
  • Post-marital agreement
  • Marriage agreement
  • Mid-marriage agreement
  • Post-nuptial agreement
  • Post nuptial agreement
  • Lifestyle agreement 

Whether these agreements are enforceable, or if a couple decides to use them or not, openly discussing them cant be beneficial. If they are negotiated in the proper manner and can be legally upheld, they can certainly be structured to deter certain behaviors or make a spouse feel more secure. 

The process of negotiating these types of agreements will hopefully open up the lines of communication between spouses, and perhaps help the marriage in a way that it couldn't before. Feelings about finances, parenting, infidelity and other expectations will be made clear.

This communication by itself can be helpful, even if the agreement never needs to be enforced.   

It is recommended that before taking the step to draw up a legal agreement between you two that you consider marriage or couples counseling. You can seek out a counselor with mediation skills called a collaborative professional. This person should have the skills to help you put conflict to rest on a hot topic of disagreement or help you through the process of creating an agreement.  

*Article updated by Marni Feuerman