Download Delaware Postnuptial Agreement Form [PDF]

The Delaware postnuptial agreement is a legal document that is used to determine the rights and obligations of spouses in connection with their individual and marital property. The main difference between a postnuptial and prenuptial agreement is the moment the parties sign the document.

With a prenup agreement, the spouses must sign the agreement before they enter the marriage, while with a postnup agreement, the spouses can sign the agreement at any point during their marriage.

However, the postnuptial or marital agreement is used both during and after the marriage. The spouses can use this document to determine how they will manage the marital property during their marriage, but they can also use it to determine how they will divide the property in case of a divorce.

Laws and Legal Requirements for a Postnuptial Agreement in Delaware

The laws and legal requirements for a postnuptial agreement in Delaware are outlined in precedents established by the courts and in the provisions of the state law. The main reason for this is that Delaware hasn’t adopted the Uniform Marital Agreements Act.

One of the most important court cases that established precedents relevant to postnuptial agreements is Rockwell v. Rockwell (1996).

In this case, the court took the stance that the postnuptial agreements should be interpreted under general contract laws by stating that: “[...] the Separation Agreement between the Husband and Wife retained its contractual nature, notwithstanding its incorporation into the final divorce decree.”

Signing Requirements for a Postnuptial Agreement in Delaware

The state law provides that the Delaware postnuptial agreement, or separation agreement, must be made in written form. Moreover, both parties to the agreement must sign the document.

The state law, however, doesn’t require parties to provide a witness or notary public acknowledgment for the postnuptial agreement. Although it is not required, the parties should consider including additional safeguards in their agreement whenever it’s possible.

The notary public will identify the parties to the agreement and acknowledge that they have both signed it. This will additionally confirm the authenticity of the document and prevent potential fraudulent activities.

Postnuptial Agreement Enforcement in Delaware

To be enforceable, the Delaware postnuptial agreement form must fulfill certain conditions set by the state law. The court can declare the postnup agreement unenforceable if one of the parties proves that:

Moreover, the enforcement of the postnuptial agreement can cause one of the parties to become eligible for the program of public support. If that happens, the court will declare such an agreement unenforceable and order one party to support the other party that would otherwise be eligible for the support.

What Can a Postnuptial Agreement in Delaware Cover?

The postnuptial agreement in Delaware can cover different matters connected with the financial and non-financial relationships of the spouses. The document, however, cannot violate the provisions of state law or public policy.

Below, you can see some of the matters that are most commonly included in the postnuptial agreement template:

Postnuptial Agreement in Delaware: Validity Criteria

The validity of the Delaware postnuptial agreement is connected to the formality requirements set by the state law. This means that the agreement must be made in writing and must be signed by both parties.

Moreover, the existence of the marriage is also crucial for the validity of the postnuptial agreement. The parties can sign a valid postnuptial agreement only after they enter the marriage.