Postnuptial Agreements in California
After a couple gets married, some situations arise where they enter into a postnuptial agreement to protect their property rights if they decide to get a divorce later.
A marital agreement can establish each spouse's rights and obligations over their assets and debts. However, before you make this type of marital contract, you should make an effort to understand California's postnuptial agreement laws.
Most people know about prenuptial agreements, which are created and signed by both spouses before marriage. A similar type of legal document is called a postnuptial agreement.
Both legal documents establish some guidelines for a married couple related to dividing property and assets in case of divorce. Still, each is unique based on when they are created and signed.
A prenuptial agreement is made before a couple gets married, while a postnuptial deal occurs after marriage. Many couples don't want to make any agreements about what will happen in case of a divorce before they even get married.
So, a postnuptial agreement could be a better option, but you will need to make sure that it is legal and enforceable by getting guidance from an attorney. Our California family law and divorce lawyers will review this topic in greater detail below.
Postnuptial Agreement - Explained
A postnuptial agreement in California is a legal document protecting the financial-related issues of both spouses in case of a divorce.
In other words, when a couple decides to divorce, the terms in the signed and approved postnuptial agreement dictate how the family law courts will divide property, assets, debts, and other related legal matters.
Simply put, a postnuptial agreement does the same thing as a closely related prenuptial agreement, but it's created after their marriage, not before it.
A postnuptial agreement typically establishes rules and terms for a wide range of topics if the couple decides to get a divorce, such as:
- Child support;
- Child custody;
- Spousal support (alimony);
- Property division;
- Dividing assets and debts;
- Premarital assets;
- Retirement and 401(k) accounts;
- Pension plans;
- Investment accounts;
- Checking and savings accounts,
- Credit card debt;
- Real estate property;
- Business or professional practice;
- Student loans;
- Vehicles and boats;
- Stocks and bonds;
- Life insurance;
- Issues in case of death;
- Family pet.
How Long After Getting Married Can You Create a Postnuptial Agreement?
There are no set time limits on how long you have been married under the law, but any postnuptial agreement must meet the legal requirements under California laws, which are discussed below.
Many postnuptial agreements are created, signed, and executed after a couple has been married for a long time after assets and debts become clearer.
For example, suppose your spouse accumulates large debts over a drug addiction that could negatively impact your financial future and the best interest of your children.
In that case, you could consider drafting a postnuptial agreement to protect yourself and the kids.
Perhaps your financial situation starts to change drastically after starting a new business. You may be seeking to secure a stable financial future for your children.
These could be valid reasons to pursue a postnuptial agreement, but some couples have better options.
Sometimes, just mentioning the idea could get you in the doghouse quickly. It would help if you met with a lawyer to discuss the concept and legal options.
Must a Court Approve a Postnuptial Agreement?
Yes. Readers should note that a postnuptial agreement must be approved by the family law court to be valid. Sometimes, they are too one-sided, making it appear that one spouse is attempting to take advantage of the other. In that not-too-uncommon situation, the court could deny it.
Further, when a couple is married, they then owe each other a fiduciary duty, meaning acting in good faith and fair dealing. In other words, a postnuptial agreement won't be approved or enforced unless its terms are reasonable and appropriate to both spouses.
Also, California family law courts are generally very suspicious of any terms in a postnuptial agreement that waives spousal support, called “alimony.”
As noted, spouses owe each other a fiduciary duty. Thus, when a judge reads any language dealing with waiving spousal support, you should expect scrutiny and many questions as it looks suspicious.
The potential non-paying spouse must show the court that the postnuptial agreement doesn't breach their fiduciary duty to their spouse.
For example, some terms on child custody and support could be prohibited if they violate California family law statutes.
These issues discussed above make a postnuptial agreement different from a prenuptial agreement, which is generally assumed valid by the court once both parties have signed it.
What Are the Requirements for a Valid Postnuptial Agreement?
In California, spouses are required to follow specific rules for a postnuptial agreement to be considered a valid legal document. You need to understand there are some provisions that cannot be included in a postnuptial agreement.
This is why you should get assistance from an experienced California family law attorney before drafting and signing the agreement. Some basic rules of a postnuptial agreement are:
- agreement must be in writing;
- the agreement must be clear, transparent, and fair;
- both spouses must sign it and be notarized;
- neither spouse can be forced or coerced into signing the agreement;
- both spouses must sign it voluntarily and of their own free will.
A postnuptial agreement is invalid if it is determined that one spouse used force, fraud, duress, coercion, or unjust influence over this spouse. Yes, this happens, and the courts have seen it all.
Fraud could exist when one spouse deceives or conceals important information from their spouse that would be considered essential on whether they would sign and execute the agreement.
While cases of improper coercion are generally challenging to prove, any history of domestic violence can be used to determine whether duress was used to get a spouse to sign a postnuptial agreement.
If you're considering entering into a postnuptial agreement with your spouse in California, we can help you. We can review the terms in the contract, discuss legal options, and ensure it complies with California's marital agreement laws.
Furman & Zavatsky are family law and divorce attorneys located in Los Angeles County. We provide legal representation across California. You can contact our law firm for a free case evaluation by phone or use the contact form.