People don’t usually think about the possibility of their marriage ending when they’re tying the knot. However, since divorce is not uncommon, more couples are considering taking certain precautions to protect their assets and property in the event that they end up parting ways. While most people are familiar with prenuptial agreements, there’s another type of contract that spouses can consider: a postnuptial agreement.
Prenups and postnups are becoming increasingly prevalent. Whether you overlooked a prenuptial agreement in the days leading up to your marriage, or you’d like to plan ahead in anticipation of a divorce, a postnuptial agreement can offer financial security and help to prevent extensive litigation. Regardless of the spouses’ income levels, a postnuptial agreement can protect each of their economic interests by deciding how marital property will be divided in advance — and outside the courtroom.
What is a Postnuptial Agreement?
Unlike prenuptial agreements — which are entered into before a marriage takes place — a postnuptial agreement can be entered into after the marriage has already occurred. There is no time limit concerning when spouses can enter into a postnup. The contract can be made a day after the wedding or even years later, once the marital assets have grown.
Similar to a prenup, a postnuptial agreement divides property and assets in the event of divorce. Besides specifying the spouse’s separate property, a postnup can also decide how marital property will be divided to avoid lengthy divorce proceedings.
Additionally, a wide variety of issues can be outlined in a postnuptial agreement, including spousal support, pet ownership, responsibility for debts, division of 401(K) accounts, and other matters pertaining to the marriage. Sometimes, they can also be used to protect business assets. A postnuptial agreement can also be used in connection with an estate plan to resolve property division issues when a spouse passes. Others use these types of agreements to determine financial matters pursuant to a legal separation if divorce is not an option.
Requirements for a Valid Postnuptial Agreement in California
California is a community property state, which means each spouse is generally entitled to half of the marital property in a divorce or legal separation. Although spouses are granted certain property rights by law once they enter into a marriage, California Family Code Section 1500 provides that an agreement — such as a postnuptial contract — entered into by both spouses can alter them.
Importantly, there are certain legal requirements in California that must be met for a postnuptial agreement to be valid. In order for a California judge to enforce a postnuptial agreement, it must be:
- In writing
- Signed by both spouses
- Equitable and fair to each spouse
- Transparent and unambiguous
Both spouses must enter into the postnuptial agreement voluntarily and without threat, force, or coercion — a postnuptial agreement that was obtained by fraud, deception, or physical force by one of the spouses will not be enforced. Similarly, a postnup that is unfair or unconscionable, and only benefits one spouse, will not hold up in court.
A postnuptial agreement in California must also be written with clear, unambiguous, and specific language to withstand any litigation, which is why it’s essential to have a knowledgeable attorney draft the document. An unclear postnup may be considered invalid. In addition, both spouses must disclose all finances, assets, and property in the document — failure to completely disclose financial information can make even the most well-drafted postnup unenforceable.
Though not necessarily required by law, a skillfully drafted postnuptial agreement should contain a severability clause. This type of provision can allow the rest of the document to remain valid if one section has been determined unenforceable. An experienced postnuptial agreement lawyer will know how to draw up an effective agreement that can meet your objectives.
Do You Need a Postnuptial Agreement?
There can be any number of reasons a married couple chooses to enter into a postnuptial agreement. If there’s any indication your marriage may not be working out, it may be a good idea to start thinking about a postnup to protect your rights. Determining issues of property division and assets before emotions start running high can simplify the divorce process and save you a significant amount of time and money that would otherwise be spent litigating the issues in court. However, postnups can also be used to mitigate conflict, restore trust, and facilitate important conversations about finances and other issues in the marriage.
Another reason spouses may consider entering into a postnuptial agreement is if there’s a substantial change in financial circumstances — for example, if one spouse receives an inheritance, has a career change, or experiences a significant increase in salary. While inheritances are considered separate property, they can sometimes be commingled or transmuted into marital property, making them subject to property division in a divorce.
In other instances, your spouse’s behavior during the marriage might necessitate taking measures to protect yourself financially from the debt your spouse might incur. If your spouse has gambling addiction issues or overspending problems, this may be a warning sign that your finances could be in jeopardy. A valid postnuptial agreement can ensure a spouse is responsible for their own debt and in some cases, may help to resolve any disputes concerning finances.
Contact an Experienced California Postnuptial Agreement Lawyer
If you’re wondering whether a postnuptial is right for your situation — or your spouse has asked you to sign one — it’s best to consult with an experienced matrimonial and family law attorney. An attorney with proficiency in drafting postnuptial agreements can draw up a document that meets all necessary legal requirements to be valid and enforceable in court. They can also review and discuss any postnup presented to you by your spouse to ensure your financial interests and property rights are safeguarded before you agree to its terms. The Law Office of Rick D. Banks has over two decades of experience drafting and reviewing postnuptial agreements and assisting clients in Fresno and the surrounding area with a variety of divorce and family law matters. To schedule a no obligation consultation, call (559) 272-8359.