Postnuptial agreements, often called "postnups," may not sound romantic but for many couples, they’re a smart and empowering tool for strengthening a marriage.
Whether you're newlyweds navigating life together or longtime partners reassessing your financial future, a postnup can offer clarity and peace of mind. But what exactly can you include in one?
As a medically trained divorce attorney/mediator, I have guided many couples and drafted thousands of postnuptial agreement. So let me share with you what can and can’t be included in a postnuptial agreement and how mediation can be a valuable tool in the process.
What Can Be Included in a Postnuptial Agreement
- Division of Property
You can outline how assets—such as real estate, retirement accounts, or personal property—will be divided if the marriage ends in divorce or death. This is especially useful when one or both partners brings significant wealth or debt into the marriage. - Debt Responsibility
You can determine who will be responsible for certain debts, including credit cards, student loans, or business liabilities. - Spousal Support (Alimony)
Many postnups outline whether spousal support will be paid, how much, and for how long. This can provide predictability and reduce potential legal battles. - Inheritance Rights
Postnups can help clarify estate plans, particularly in blended families. You can use the agreement to waive or preserve inheritance rights between spouses, making it easier to protect children from previous relationships. - Ownership of Businesses
If one spouse owns a business, a postnup can protect it from being divided in a divorce. This is important for entrepreneurs who want to ensure continuity and control over their company. - Division of Future Assets
The agreement can account for assets not yet acquired, such as anticipated bonuses, stock options, or inheritance. - Lifestyle Clauses (Sometimes)
Clauses about things like infidelity penalties or pet custody have been included in some postnups—but whether they are enforceable depends on your state laws and the nature of the clause.
What Can’t Be Included in a Postnuptial Agreement
- Child Custody or Child Support
Courts determine child custody and support based on the best interests of the child at the time of divorce. You cannot override this with a postnup, even if both parents agree. - Unfair or Unconscionable Terms
A postnup that heavily favors one spouse, was signed under pressure, or lacks full financial disclosure may be thrown out by a judge. - Provisions Encouraging Divorce
Any clause that appears to incentivize divorce—like giving one spouse a large sum only if they file for divorce—may not be enforceable. - Non-Financial Personal Matters (Usually)
Some states won’t enforce terms related to non-financial aspects of the marriage, like agreements about household chores, intimacy, or parenting styles. - Waiving Future Rights to Spousal Support (in some states)
Some states allow spouses to waive spousal support in a postnup, but others do not. Even where it's allowed, the court might reject it if it’s deemed unfair or if circumstances have changed drastically.
How Mediation Can Help Couples Create a Postnuptial Agreement
For many couples, the idea of negotiating a postnup can feel intimidating,especially if it brings up sensitive issues like money, trust, or past conflict.
What is Mediation?
Mediation is a collaborative process where a neutral third-party mediator helps both spouses discuss and resolve issues constructively. Instead of “winning” or “losing,” the goal is to find mutually agreeable solutions that reflect the couple’s shared values and goals.
Benefits of Using Mediation for a Postnup:
- Reduces Conflict: Mediators create a safe, structured environment that encourages open communication without judgment.
- Saves Time and Money: Compared to litigation or lengthy attorney negotiations, mediation is typically faster and less expensive.
- Customizes Solutions: A mediator can help you craft creative agreements tailored to your unique family, business, or financial situation.
- Builds Trust: Working through a mediator fosters collaboration and can strengthen your relationship, especially if you’ve hit a rocky patch.
- Confidentiality: Mediation sessions are private and confidential, unlike court proceedings.
The Mediation Process:
- Initial Consultation: The mediator meets with both spouses to understand goals and identify issues to address.
- Information Gathering: Each partner shares financial documents and relevant information for full transparency.
- Collaborative Sessions: The couple meets (virtually or in person) with the mediator to work through asset division, support terms, and any other matters.
- Drafting the Agreement: Once decisions are made, the mediator helps create a written postnup. Each spouse can then review it with their own attorney before signing.
As a medically trained divorce attorney and mediator for over 35 years, I have drafted hundreds of postnuptial agreements. It is essential to choose the right family law attorney/mediator when drafting a postnuptial agreement.
A postnuptial agreement isn’t just a legal document. It can be a valuable roadmap for your relationship. It can protect your financial future, clarify expectations, and even strengthen your bond when approached thoughtfully.
Whether you’re navigating complex finances, protecting children from prior marriages, or just planning ahead, a well-crafted postnup, especially one developed by me and through mediation, can be a loving act of transparency and respect.
If you would like to learn more about a postnuptial agreement call now to schedule your free consultation. Call 212.734.1551.
Warm wishes,
Lois