A contract between spouses, signed during the marriage, that decides how property and support would be handled on divorce or death, and why courts scrutinize it more closely than a prenup.
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A postnuptial agreement is a written contract between spouses, made after the wedding, that sets out how property will be divided and whether spousal support will be paid if the marriage ends in divorce, and often what each spouse receives at the other's death. Couples sign them after one spouse inherits or starts a business, when one leaves work to care for children, when they move to a state with different property rules, or as part of a reconciliation. It does the same job as a prenuptial agreement, but it is made between people who are already married.
That difference is why courts look harder at postnups. Spouses owe each other duties of good faith and fair dealing, and in some states a full fiduciary duty, so an agreement in which one spouse gives up rights is examined for fairness in a way an agreement between engaged people may not be. Requirements vary by state, but courts commonly ask whether the agreement is in writing and signed by both spouses, whether each made full and fair disclosure of their assets, debts and income, whether each signed voluntarily and not under pressure or a threat of divorce, whether each had the chance to get independent legal advice, and whether the terms were fair when signed and are not unconscionable when enforced. A few states have adopted a uniform act that applies the same rules to premarital and marital agreements; elsewhere case law governs.
Some things a postnup cannot settle. Agreements about child support and custody do not bind a court, which decides those by the child's best interests at the time. Waiving a spouse's survivor rights in an employer retirement plan requires the spouse's written, witnessed consent in the form federal law prescribes, which a general property agreement may not satisfy. And an agreement that would leave a spouse dependent on public assistance may not be enforced as to support. See also marital property division.
Each spouse should have their own family law lawyer; an agreement signed when only one spouse had advice is the one most likely to be thrown out later. Exchange complete financial disclosure in writing, including business interests, retirement accounts and expected inheritances, and allow time between the draft and the signing. If the agreement is part of a reconciliation after a separation, or if one spouse is far more dependent on the other, expect the court to look especially closely at fairness.
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