The Marriage Agreement Every Gray Couple Should Sign (and It’s Not a Prenup)

Couples might also opt for a postnup if one spouse invested significantly more of their own money into a home purchase than their partner did, or because they have children from a previous marriage who they want to protect for estate planning purposes.

Postnups can vary, but there are certain assets all couples should consider when thinking about what to include. Debra Feit, an estate and trusts attorney and owner of Feit Law Firm in Boca Raton, Florida, who specializes in postnuptial contracts, advises clients to discuss their retirement accounts, the family home, debts and any savings accounts that are jointly or individually owned. 

How to create a postnup

The ins and outs of the postnuptial agreement process can vary by state (since states set their own divorce laws) and by your personal circumstances, but generally you’ll want to take the following steps.

1. Outline your goals

Consider what you want to get out of a postnup before you meet with an attorney, suggests Kaylin Dillon, a certified financial planner in Lawrence, Kansas, who specializes in prenups and postnups. Do you want to set guidelines for what will happen to your house if you split? Determine what will happen to assets that you owned prior to your marriage? Make sure your children from a previous marriage are protected?

“As clear as the couple can be as a unit ahead of time, the better,” Dillon says. “It saves them time, they can have a lot less back and forth, and it also saves them some money in attorney fees.”

2. Lay out your assets

Feit recommends sitting down with your partner and creating a spreadsheet of both your individual and shared assets and liabilities. You can then go through the list, deciding who gets what should you divorce. Also, consider signing an affidavit attesting that you fully disclosed your finances to one other; you may need to present it in court if you divorce. 

3. Consult an attorney

Dillon often recommends couples hire an attorney who specializes in family law or estate planning to help them draw up a postnuptial agreement. If the postnup is challenged in court, it will be helpful to have a lawyer who has experience handling that situation. 

Consider hiring separate attorneys so that both of your interests are protected. Fees can vary based on factors like how complicated your finances are and where you live, but Dillon says couples can expect a ballpark cost of $2,000 to $5,000 split between the two attorneys. And keep in mind that the attorney who writes the agreement may charge more than the one who reviews it, given their greater time investment.

4. Sign and update as needed

Once the terms of the agreement are finalized, both parties will sign the contract. Dillon says couples usually sign two original postnups so that each can keep one, and she recommends saving an electronic copy as well. She advises against leaving the original with an attorney, as law firms have document retention policies requiring that they only keep papers for a certain period of time.

Going forward, you may want to consider updating the contract after a major life event occurs, like if one spouse retires, you take on financial responsibility for a grandchild or there is a change in your estate plan.

Other than making those updates as necessary, you “really don’t have to do anything with it until it’s needed,” Feit says. “Hopefully, it won’t be.”