Free Delaware Postnuptial Agreement Template

A Delaware postnuptial agreement is a signed contract that sets how spouses will treat property and debts if the marriage ends. Delaware’s divorce statute lets a valid agreement of the parties exclude property from the marital estate.

Almost Everything Acquired Is Presumed Marital

Delaware presumes that property either spouse acquires after the wedding is marital, however it’s titled. The presumption is overcome only by showing one of the statute’s listed exceptions (13 Del. C. § 1513(c)).

Exceptions Include Property Excluded by Agreement

Those exceptions cover property excluded by valid agreement of the parties. They also cover property exchanged for premarital property and the increase in value of premarital property (13 Del. C. § 1513(b)(1)). Inheritances and outside gifts can qualify too, but only with a paper trail.

Gifts Between Spouses Count as Marital

Property one spouse gives the other during the marriage is marital property (13 Del. C. § 1513(c)). So a gift between spouses doesn’t create separate property on its own.

Gifts and Inheritances Need a Paper Trail

An inheritance or a gift from someone else stays separate only if a listed condition applies. For example, it can be titled and maintained solely in the receiving spouse’s name. Other options include a gift tax return or a notarized or other validly executed document made at or before the transfer (13 Del. C. § 1513(b)(1)a).

The Court Divides Equitably

On request in a divorce, the Family Court divides marital property equitably, without regard to marital misconduct, after weighing listed factors. Those factors include the length of the marriage, each spouse’s debts, and whether the award replaces or adds to alimony (13 Del. C. § 1513(a)).

It can, and for co-owned real estate it matters. All jointly titled real property the couple acquired before marriage counts as marital property, unless a valid agreement excludes it (13 Del. C. § 1513(b)(2)). Jointly titled includes joint tenancy, tenancy in common, and any other co-ownership.

So if you bought a house together before the wedding, your Delaware postnuptial agreement can say how to treat it. Otherwise, the statute’s default applies.

A Delaware postnuptial agreement comes together best in this order:

1. Identify premarital real estate. Note any property you co-owned before the wedding and how it’s titled.
2. List everything acquired since. Remember that titling alone doesn’t overcome the marital presumption.
3. Document gifts and inheritances. Keep gift tax returns or other records alongside the agreement.
4. Exchange full financial information. Each spouse shares assets, debts, and income.
5. Sign and date the agreement. Each spouse signs one identical copy.
6. Store records together. Keep the agreement with deeds, account records, and gift documents.

Cover the items Delaware’s statute actually turns on:

• Excluded property — each asset the agreement keeps out of the marital estate
• Premarital co-owned real estate — how you’ll treat it
• Gift and inheritance records — which assets came from outside the marriage
• Debt terms — who is responsible for each obligation
• Pets — who keeps them, since the court can award a companion animal found to be marital property (13 Del. C. § 1513(g))