Note that the legality and enforceability of postnuptial agreements are different from those of prenuptial agreements and vary from state to state and from country to country. This postnuptial agreement template provides a good starting point, but you should take care to ensure that it will be enforceable in your state or country. If in doubt, seek legal advice.
This Postnuptial Agreement (the “Agreement”) sets out the terms and conditions upon which HUSBAND NAME (the “Husband”) and WIFE NAME (the “Wife”) shall manage their financial and legal affairs in the event of their separation or divorce (together, the “Parties”).
In the case of same-sex marriages, we suggest amending the above (the “Husband”) and (the “Wife”) to the full names of the husbands or wives (as the case may be) and replacing these references throughout.
WHEREAS: The Parties have been married since [DATE] (the “Marriage”).
WHEREAS: The Parties are living together.
If the parties do not live together, you should amend or remove this clause.
WHEREAS: The Parties are each desirous of formalizing their respective joint and several financial and legal rights, obligations, liabilities, and property rights in the event of their separation or divorce, or in the event of annulment of their Marriage.
When drafting, you should note this general rule: terms that are reasonable and fair to both parties are more likely to be enforceable than terms that create a significant imbalance between parties.
WHEREAS: The Parties intend this postnuptial Agreement to become effective immediately.
WHEREAS: The Parties have made a complete and accurate disclosure of their intended separation of assets and liabilities (Schedules A and B).
NOW, THEREFORE, IT IS HEREBY AGREED as follows:
1. DEFINITIONS: In this postnuptial Agreement:
1.1 “Income” shall mean any income arising due to the commercial activity, work, employment, endeavors, skills, passive holding of assets, dividends, inheritance, pensions, interest, rent, inheritance, investments, property, or arising from any other source.
If you wish to separate different sources of income, you should delete this subclause and renumber the following subclauses. Full disclosure of financial information in postnuptial agreements is more likely to result in an enforceable contract.
1.2 Unless it is evident from the context and having regards to the generality of this postnuptial Agreement that a clause intends to mean otherwise: words denoted in the singular only shall include the plural and vice versa; words denoted in any gender shall include all genders; and, terms denoting people or persons shall include both natural and legal persons (such as corporations) and vice versa.
1.3 The heading names in this postnuptial Agreement are provided as reference only and do not form part of this postnuptial Agreement.
1.4 This postnuptial Agreement may be executed in both English and other languages. If there is a conflict between this postnuptial Agreement in its various translations, the English version shall prevail.
1.5 The illegality or unenforceability of any clause (or part thereof) shall have the effect of voiding that clause (or part thereof) only and not the entirety of this postnuptial Agreement.
2. EXCLUSIVE JURISDICTION OF THIS AGREEMENT:
Both Parties agree and declare that, in the event of their separation or divorce, or on termination of their Marriage (including by annulment), they will submit to the exclusive jurisdiction of this postnuptial Agreement and irrevocably waiver the right to make any claims arising out of the Marriage against the estate of the other except under this postnuptial Agreement.
3. DIVISION OF PROPERTY: Both Parties hereby agree:
Without a prenup or postnup contract in place, marital property is divided based on negotiations or court orders. However, separate property remains in the possession of the owner unless otherwise decided. For example, a house bought after a couple gets married is marital property, while a car bought before marriage is separate property. These postnup clauses offer a guide for dividing the couple’s joint property without emotions or outside influences getting in the way after the marriage ends.
3.1 That in the event of separation, divorce or the annulment of the Marriage, the Wife shall transfer to the Husband all that property and Income and any interest in said property or Income listed in Schedule A and shall waiver, renounce and relinquish any and all rights over said property in favor of the Husband.
3.2 That in the event of separation, divorce or the annulment of the Marriage, the Husband shall transfer to the Wife all the property and Income and any interest in said property or Income listed in Schedule B and shall waiver, renounce and relinquish any and all rights over said property in favor of the Wife.
3.3 That any property not expressly included in Schedule A and Schedule B shall be divided by agreement between the Parties at the time of separation, divorce, or annulment and, if agreement cannot be reached between the parties, then the matter shall be determined by an arbitrator in accordance with clause 11.
This clause covers all property that’s not listed in the schedules at the end of the postnuptial agreement form. Make sure everything you care about is listed in those schedules, or the things you miss will be divided as though there was no legal contract in place.
3.4 That the above clauses (3.1, 3.2, and 3.3) shall apply notwithstanding any investment by one Party of time, effort, or money in the maintenance, improvement, or other betterment of the property of the other Party.
3.5 That the above clauses (3.1, 3.2 and 3.3) shall apply notwithstanding any behavior, agreement, promise, or course of action which purports to confer the rights or obligations of one Party upon the other Party unless it be formalized in accordance with clause 8 of this postnuptial Agreement.
4. DIVISION OF DEBTS AND OBLIGATIONS: Both Parties hereby agree:
4.1 That in the event of separation, divorce, or the annulment of the Marriage, the Husband shall assume full and sole responsibility for those debts, obligations, or other liabilities set out in Schedule A and agrees to indemnify and keep indemnified the Wife against any and all actions of losses brought in respect of those debts, obligations, or other liabilities.
4.2 That in the event of separation, divorce, or the annulment of the Marriage, the Wife shall assume full and sole responsibility for those debts, obligations, or other liabilities set out in Schedule B and agrees to indemnify and keep indemnified the Husband against any and all actions of losses brought in respect of those debts, obligations, or other liabilities.
Any debts that a married couple acquires are considered marital property and need to be divided in a divorce. A written agreement like this helps keep either party from having to take on their ex-spouse’s credit card debt.
5. INTENTION TO FORM BINDING RELATIONS: It is agreed that:
5.1 The Parties warrant that they have thoroughly read and understood every clause in this postnuptial Agreement.
This is a likely area for attack, so the parties may wish to initial this clause, to show that it has been read and understood.
5.2 The Parties warrant that they are aware that this postnuptial Agreement is a binding legal document and that they have each been given adequate time to consider the consequences of signing it.
This is a likely area for attack, so the Parties may wish to initial this clause, to show that it has been read and understood.
5.3 The Parties warrant that they are entering into this postnuptial Agreement entirely of their own free will and volition and expressly declare that they are acting entirely free from any kind of influence, interference, pressure (financial or otherwise), duress, or undue influence from any third-party whatsoever.
This is another place that law firms may attack, so both parties may wish to initial this clause, to show that it has been read and understood.
5.4 The Parties declare that they have each had the opportunity to take legal advice in connection with entering into this postnuptial Agreement and each has either a) done so, or b) deemed it not necessary to do so.
This is a likely area for attack, so the Parties may wish to initial this clause, to show that it has been read and understood. If either or both of the Parties have taken legal counsel (whether jointly or individually) this should be included in the above clause, as it will add validity to this postnuptial Agreement.
5.5 The Parties hereby expressly waiver their rights to dispute this postnuptial Agreement on the basis of lack of autonomy, duress, undue influence, lack of volition, or lack of understanding.
This is a likely area for attack, so the Parties may wish to initial this clause, to show that it has been read and understood.
5.6 Both Parties warrant that this postnuptial Agreement is fair and accurately reflects their intention generally and with regard to past and future assets and liabilities.
6. OTHER WARRANTIES:
6.1 Both Parties warrant that they have the necessary power and approval to enter into this postnuptial Agreement.
6.2 Both Parties warrant that they are not aware of anything in their reasonable control that will or could have an adverse effect upon their ability to perform their respective obligations hereunder.
6.3 Each Party warrants that there is no litigation currently in progress, likely to be commenced, or threatened that could adversely affect the other Party’s position.
6.4 The failure or delay by either Party to enforce any term of this postnuptial Agreement or to act upon a breach of any term shall not constitute a waiver of their rights.
6.5 Each Party expressly and irrevocably warrants they they have thoroughly read and understood the contents of both Schedule A and Schedule B.
6.6 Both Parties warrant that nothing in this postnuptial Agreement shall affect any rights of any children of the Marriage (whether biological or adopted), including the right to support.
In general, postnuptial agreements are more likely to be enforceable if the weaker party (if any) has received independent legal advice prior to signing. Note that state law in places like California require each spouse to have separate legal counsel for premarital and postmarital contracts to be considered valid. Finally, note that separation agreements can set terms about spousal support (alimony) but cannot set limits on child support and child custody.
7. DURATION:
This postnuptial Agreement shall commence on the date of its execution and shall have effect indefinitely unless it is cancelled by the express agreement in writing of both the Parties pursuant to clause 8.
8. VARIATION:
Any variation to this postnuptial Agreement shall be made in writing and signed by both parties.
9. NOTICES:
Any notice served under this postnuptial Agreement shall be made in writing and shall be considered served if it is handed to the other Party in person or delivered to their last known address or any other such address the Party being served may have notified as his address for service. All notices shall be delivered in English.
10. CONFIDENTIALITY:
Each Party irrevocably declares that they will keep the contents of this postnuptial Agreement confidential and agree to indemnify the other against any and all losses arising from their making of the existence of this postnuptial Agreement or its contents known publicly.
11. GOVERNING LAW, DISPUTES, AND ARBITRATION: It is agreed that:
11.1 The postnuptial Agreement is made under the exclusive jurisdiction of the laws of [STATE] .
11.2 Disputes under this postnuptial Agreement shall be subject to the exclusive jurisdiction of the courts of [STATE] .
11.3 Notwithstanding the terms of 11.2, both Parties agree that, in the event of a dispute, they will enter into arbitration before the International Chamber of Commerce before a single arbitrator whose decision shall be final.
Provide the full names and addresses of witnesses in case they need to be contacted later.
Signed and executed this DAY of MONTH YEAR.