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. Our orange county postnuptial agreement attorney will carefully negotiate between the spouses and draft your with great care your 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 addressing 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 fulfill 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?
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 are on good terms with each other to reach an agreement than a couple who have 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, including:
- Division of any assets, debts, or property
- Spousal support
- Death or retirement benefits
- Issues surrounding insurance
In 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.
Working with a postnuptial agreement attorney
Because of the strict legalities involved in making a postnuptial agreement, it is highly recommended that you work with a postnuptial agreement attorney to create one. An attorney will know the California prenuptial agreement law and will make sure everything is completed to the court’s satisfaction.
An attorney will also be able to act as a representative for your interests. They will ensure that you receive a ‘fair deal’, and do not end up with any less than your fair share of assets. Legal terminology can be confusing, and without the help of an attorney, you may not know exactly what you are consenting to when you sign an agreement.
Finally, a qualified attorney in family law will know the best way to word your agreement. All too often, couples write up their own agreements without the help of an attorney, resulting in a poor expression of the terms. To ensure everything is written as clearly as possible, with no room for confusion, you should enlist the help of an attorney.
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.