A postnuptial agreement is an agreement into which the divorcing couple enters as part of the divorce to resolve any issues they want to be resolved in writing once the divorce is over. Obviously, a prenuptial agreement is entered into before they get married and is intended to control what will happen to each party’s assets should the marriage end in divorce. Postnuptial agreements may be called divorce agreements, settlement agreements, marital settlement agreements, just plain agreements or any desired combination of terms and adjectives. The title is not what is important, the content is.
Postnuptial agreements are fairly common but are not required by Pennsylvania law. For example, if the parties to the divorce are living apart and neither wants anything from the other, an agreement would likely serve no purpose…except additional attorney time spent on the case. Under Pennsylvania law, once a divorce is final and if each party has what each party wants in possession (and by title where real estate, vehicles etc are involved) and no claim was officially made by either party in any document, when the divorce is final, neither party can successfully claim anything that the other party possesses. What each party has belongs solely to that party, by operation of law, without a written agreement.
A postnuptial agreement serves an important purpose when it’s agreed that a party is to receive something from the other party some time in the future after the divorce is final. Such agreements can also be very helpful to set forth the custody of minor children and the agreed support of those children and the custody schedule (as well as future payments from one ex-spouse to the other, when alimony is agreed upon). But regarding the support and custody of children, our law does not require a written agreement. Bear in mind that after the divorce, the couple will no longer be spouses, but they will still be parents with full access to the court to resolve future issues concerning the children.