9096 / What are the general requirements for drafting a valid postnuptial agreement?

As with prenuptial agreements ( Q 9092 to Q 9093), a common challenge to a valid postnuptial agreement is that the agreement is unenforceable because it is against public policy, and whether the agreement will be enforced depends upon both the terms of the agreement and the applicable state law. For example, a spouse’s agreement in a postnuptial agreement to never bring a lawsuit against her spouse for any reason whatsoever was deemed to be against public policy and, therefore, the provision was unenforceable.¹

However, provisions providing for property division have generally been held enforceable absent unconscionable terms,² and provisions providing for forfeiture of equitable property division rights have been upheld if the waiving spouse engaged in certain specified behaviors (i.e., infidelity, substance abuse or financial irresponsibility).³

See Q 9094 for a discussion of separation agreements.

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1.  Towles v. Towles, 256 S.C. 307 (1971).

2.  See, e.g., Gilley v. Gilley, 778 S.W.2d 862 (Tenn. Ct. App. 1989).