Post Prenuptial Agreement: Understanding the Concept of Separate Property

A post prenuptial agreement, also known as a postnup, is a legal contract between two parties that is entered into after their marriage. The purpose of a postnup is to outline how assets and liabilities will be divided if the couple were to divorce. One of the key areas that a postnup can address is the issue of separate property.

What is Separate Property?

Separate property refers to any assets that are owned by one spouse and are not considered marital property. Marital property includes assets that were acquired during the marriage and are subject to division in the event of a divorce. Examples of separate property include inheritance, gifts, and property owned by one spouse prior to the marriage.

Why is Separate Property Important?

Without a postnup that addresses separate property, the division of assets and liabilities can become complicated in the event of a divorce. In many states, separate property is not subject to division, but the burden of proving that an asset is separate property falls on the spouse who claims it is.

For example, if a couple owns a home and one spouse brought the property into the marriage as separate property, the postnup can set out how the property will be divided if the couple divorces. This can help avoid lengthy court battles and provide clarity and certainty for both parties.

How to Protect Separate Property with a Postnup

When drafting a postnup, it is important to clearly identify any separate property that each spouse brings into the marriage. The agreement can then specify how this property will be handled if the couple divorces.

In addition, the postnup can outline any conditions or restrictions on the separate property. For example, if one spouse owns a business prior to the marriage, the postnup may state that the other spouse is not allowed to interfere with the operation of the business or make any claims to it in the event of a divorce.


A post prenuptial agreement is an important legal document that can protect both parties in the event of a divorce. By addressing the issue of separate property, a postnup can help provide clarity and certainty for both spouses and avoid lengthy court battles. If you are considering a postnup, it is important to consult with an experienced attorney who can guide you through the process and ensure that your interests are protected.