Postnuptial Agreement in California
Postnuptial agreement in California is not easy to handle on your own because of enforceability issues. Special requirements must be met in order to enforce such an agreement.
What is Postnuptial Agreement?
A Postnuptial Agreement is an interspousal agreement, executed during a marriage, that affects marital rights and obligations.
A postnuptial agreement (postnup) is similar to a prenuptial agreement, but a postnup is entered into after a party is married. Prenuptial agreement and postnuptial agreement usually address the same marital subjects.
A postnuptial agreement can be written up anytime after marriage. There is no time limit on when (in your marriage) you can do this.
Is a postnuptial agreement in California legally binding?
Postnuptial Agreement in California is legally binding and enforceable, providing it fulfills a set of requirements. The main California postnuptial agreement requirements are:
- It shall be in writing.
- All terms shall be stated clearly, without ambiguity.
- Both spouses must be entering the prenuptial agreement voluntarily without duress, force, or coercion involved.
- Both spouses must fully disclose their finances in the greatest detail, including debts, liabilities, income, and assets. If the court finds misrepresentation or fraud was involved, the agreement will be void.
Any court will look at how fair your agreement is to each of the spouses in order to enforce it. Our Orange County postnuptial agreement attorney will help you to come to an agreement about the values of assets important for each balancing the entire picture of the estate to be fair.
Who needs a postnuptial agreement In California?
A postnuptial Agreement is essentially a way of sorting out the different elements of possible divorce before a divorce occurs. In the case of divorce, you and your spouse will have an already agreed-upon set of terms that can take effect without any further work. This often makes the divorce process a lot faster and less stressful.
With a postnuptial agreement, it is also more likely that both spouses will be happy to cooperate with each other. It is much easier for a couple who is on good terms with each other to reach an agreement than a couple who has already filed for divorce. For these reasons, lots of couples choose to draw up a postnuptial agreement, even though they do not plan on divorcing.
Some spouses use a postnuptial agreement as a way of protecting their property. By outlining the division of assets in the postnuptial agreement, a spouse who possesses a lot of property will be able to retain this property, even in the case of a divorce.
If one spouse’s assets grow significantly during the course of the marriage, e.g. through a successful business or an inheritance, they may wish to draw up a postnuptial agreement. This way, they can keep some of these assets separate from community property.
In some cases, a spouse may also wish to draw up a postnuptial agreement if they have noticed recent negative changes in their partner’s behavior. There is no pressure to initiate a divorce in any of these circumstances, but a postnuptial agreement may serve as a useful protective measure in the future.
What to Include in a postnuptial agreement in California
A postnuptial agreement outlines rules which dictate what happens when a couple divorces. Most common issues which are resolved during a divorce can be resolved in a postnuptial agreement.
A postnuptial agreement can include various provisions, some of which are:
- Division of Property: An important function of a postnuptial agreement is to outline how marital property would be divided in case of a divorce or death. This includes real estate, personal property, and financial assets.
- Debt Liability: The agreement can specify who would be responsible for paying which debts in the event of a divorce, thus protecting one spouse from the other’s individual debts.
- Spousal Support (Alimony): The agreement can include provisions for spousal support. However, in California, any provision regarding waiving or limiting spousal support is scrutinized closely by courts and can be set aside if it is found to be unconscionable at the time of enforcement.
- Financial Responsibilities During the Marriage: The agreement can also outline each spouse’s financial obligations during the marriage, such as who pays for what expenses, who is responsible for certain debts, etc.
- Estate Planning: The agreement can include provisions that reflect the couple’s estate planning objectives.
- Ownership and Control of Business: If either or both spouses own a business, the agreement can determine how the business would be divided, managed, or valued in the event of a divorce.
It’s important to note that certain topics cannot be included in a postnuptial agreement. For example, any provisions concerning child support or child custody will not be enforceable. These decisions are always made by the court based on the best interest of the child at the time of the decision.
In a postnuptial agreement in California, spouses cannot contract or limit child support and child custody. All terms that set or restrict child support or child custody will make the entire postnup unenforceable.
It is also a good idea to include a severability clause in your postnuptial agreement. Including this clause means that, in the case where one section of your agreement is invalid, the rest of your agreement will remain valid. Otherwise, one invalid section can render the entire agreement unenforceable.
Do not attempt to write in a severability clause yourself, as it is easy to make a mistake in the wording. Instead, enlist the help of a qualified attorney in family law to write it in for you.
Writing a postnuptial agreement
When writing up a postnuptial agreement with your spouse and attorney, there are some things you can do to ensure you’re happy with the results.
Make sure you initial every page of your agreement. If you only sign on one page, you will be ‘agreeing to’ any page within the agreement, even if you haven’t read it. This makes it easy for the other party to conceal their own page within the contract.
Read through every draft of the agreement, especially the final draft, with great care. Reading through pages upon pages of legal documents can be tedious, but this is a very important process that should not be taken lightly.
Postnuptial agreement disadvantages
While postnuptial agreements can provide clarity and security in a marriage, there are also several potential disadvantages:
- Emotional Strain: Discussing a postnuptial agreement may create tension or stress in a marriage. It can bring up difficult conversations about finances, death, or the potential dissolution of the marriage, which can be challenging to navigate.
- Perceived Lack of Trust: One spouse might interpret the desire for a postnuptial agreement as a lack of trust or confidence in the relationship. This perception can negatively affect the relationship.
- Inequality: Postnuptial agreements might be unfair if one party has more resources or better legal counsel. A spouse may end up agreeing to terms that are not in their best interest.
- Limited Child-Related Provisions: Postnuptial agreements cannot legally define terms related to child support or custody in the event of a divorce. The court always has the final say on these matters, based on the best interest of the child.
- Possibility of Being Overturned: If the court finds that the agreement was not executed properly (e.g., if one party did not have legal representation, was coerced, or if the agreement is unconscionable), it might be invalidated, making the process a potential waste of time and resources.
- Legal Expenses: Hiring attorneys to negotiate and draft a postnuptial agreement can be costly.
- Privacy Concerns: Postnuptial agreements might require full disclosure of assets, which can be uncomfortable or undesirable for some individuals.
Working with a postnuptial agreement attorney
When drafting a postnuptial agreement in California, both spouses should be represented by separate legal counsel. This helps ensure that the interests of each party are adequately protected. A postnuptial agreement can significantly affect the distribution of assets and debts, and could even impact spousal support rights in the event of a divorce. Having separate legal counsel for each party can prevent claims of duress, coercion, or lack of understanding about the terms of the agreement.
California law specifically encourages representation by separate counsel when drafting prenuptial agreements (also known as premarital agreements). The same principles apply to postnuptial agreements. Even though it’s not a legal requirement, it’s highly advisable.
If one spouse waives the right to have an attorney, that waiver must be explicit and informed. The spouse should fully understand the terms of the agreement and their implications. However, the safest course of action to ensure the agreement will be enforceable is for both parties to have independent legal advice.
If you are considering a postnuptial agreement for you and your spouse, we can provide you with the reassurance and expertise that you may need. Our experienced Orange County postnuptial agreement attorney will help you and your spouse reach a postnuptial agreement that will benefit you both.