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How to Write a Postnuptial Agreement with or without a Lawyer

A postnuptial agreement is a legally binding contract married couples can sign that spells out how they would handle their finances and property in the event of a divorce. It can be a very smart way to protect yourself and your assets if your marriage ends. And, contrary to popular belief, you don't necessarily need a lawyer or divorce attorney to draw one up. Here's everything to know about postnups.

What is a postnuptial agreement?

Essentially, a postnup is a pre-divorce agreement where you can specify details about divorce settlement issues such as asset division, spousal support, and debt distribution – all before any legal proceedings occur.

You can write a prenup yourself or with the help of a divorce attorney. To be valid and enforceable, you must follow any state requirements on the execution of the legal document.

Issues covered in a postnup

Property division

One of the most important aspects of any divorce is property division. Who gets the house? The car? The savings account? With a postnup in place, you and your spouse can agree on how to divide your property in the event of divorce, which can save you a lot of time, money, and stress down the road. 

Alimony and spousal support

If you or your spouse ever find yourselves in a position where one of you is unable to work after a divorce, a postnup can clarify how to handle financial support. Without a postnup, such spousal support decisions might have to be made by a judge who may not make the best ruling for your financial situation.

Debt repayment

Do you and your spouse carry any joint debt? If so, a postnup can detail who would be responsible for repaying that debt in a divorce settlement. This can be especially important if one spouse has bad credit or is otherwise financially irresponsible. 

Protecting business assets

If you or your spouse own a business, a postnup can help protect those assets in the event of divorce or death. Without a postnup, businesses often become embroiled in lengthy and costly legal battles that siphon valuable resources you could otherwise have used to keep the business running smoothly. 

Benefits of involving a lawyer

There are benefits to using a lawyer to create your postnup:

  • A lawyer can make sure your agreement is legal and enforceable. 
  • If you have complex financial circumstances (e.g., multiple properties or businesses), a lawyer’s expertise can save you time and stress.
  • Involving a law firm may make it easier to enforce the agreement in court.

Hiring a lawyer inevitably costs more than creating a postnup yourself. However, an incorrectly formatted postnup could actually create more legal headaches if you get a divorce.

Benefits of doing it yourself

Many couples assume they must hire a divorce lawyer to draw up a postnup, but this isn't necessarily true. If you and your spouse are on good terms and can communicate openly about your finances, you may be able to create the agreement yourselves. 

The main difference and largest advantage of writing your own postnup is saving money. In the simplest of situations, you could draft a postnup using a template found online. 

It’s also faster to write your own postnup with your spouse than it is to work with a lawyer. In fact, you may be able to do it over a weekend. (Just make sure you address every possible asset and debt.) 

The DIY postnup approach is not recommended for complex marriages with substantial marital property, real estate, and assets. If you have a house, a couple of cars, and maybe a vacation home or rental property, consider using a divorce attorney to handle your postnup drafting.

FAQ about postnuptial agreements

Do postnuptial agreements hold up in court? 

In most cases, yes, postnups hold up in court. However, there are instances where a court may not enforce a postnuptial agreement. For example, if the agreement was not entered into voluntarily or is unfair to one party, a court may choose not to enforce the agreement. 

Can anything be included in a postnuptial agreement? 

Most things can be included in a postnuptial agreement as long as both parties agree and the terms are not illegal. Common terms included in postnuptial agreements include how property would be divided in a divorce, what would happen to business ownership, and details about spousal support payments

Who should have a postnuptial agreement? 

Any married couple could potentially benefit from having a postnuptial agreement since the divorce rate is so high and the division of assets can be such a touchy subject in divorce. However, they are especially beneficial for couples who own considerable assets or who have been married previously. 

How much does it cost to create a postnuptial agreement? 

Postnup agreements vary in price depending on the complexity of the agreement and the state you live in. On average, you can expect to pay between $500 and $5,000 to have an attorney draft a postnuptial agreement. 

How long does it take to create a postnuptial agreement? 

It typically takes anywhere from one week to one month to create a postnup agreement. The more complex your situation is, the more time you’ll need to set aside for it. 

Do both parties need an attorney? 

It’s often recommended that both parties have an attorney when creating a postnuptial agreement, but it’s not required. If both parties do not have an attorney, it is vital that each person fully understands the terms before signing.

HelloDivorce provides legal assistance drafting postnuptial agreements for married couples. Click here to learn more.