You probably already know that a pre-marriage or prenuptial agreement is a legal and financial document that about-to-be marriage partners create with the help of one or more prenuptial agreement attorneys in Oceanside.
It’s an agreement that lets the partners protect their personal property, be protected from the other’s debts, and make a number of other provisions in case the partners eventually divorce.
But what if you are already married? Here in California, can you and your spouse create your own “postnuptial” agreement that serves the same purposes as a prenuptial agreement?
WHAT IS A POSTNUPTIAL AGREEMENT?
After two people are legally married, if they do not already have a prenuptial agreement, they have the choice to create their own agreement.
In every way that’s important, a postnuptial agreement in this state accomplishes exactly what a prenuptial agreement accomplishes.
The only actual dissimilarity between a “postnup” and a “prenup” is that the postnuptial agreement is created and signed at any time after – rather than prior to – the wedding ceremony.
Understanding what provisions are legal and enforceable in a postnuptial agreement is essential to ensure that the document will be recognized by a California divorce court as a valid legal contract.
WHAT CAN A POSTNUPTIAL AGREEMENT ACCOMPLISH?
A “postnup” in effect resolves in advance potential disputes regarding a couple’s children, assets, finances, inheritances, and other frequently divisive issues that may arise if the marriage is dissolved.
A postnuptial agreement (the actual legal term is “post-marital” agreement) may be valid in California if both spouses voluntarily agree to it after full disclosure of their assets, properties, and debts.
WHAT ELSE IS NEEDED TO MAKE A POSTNUPTIAL AGREEMENT VALID?
For the agreement to be valid, California law additionally requires both partners to be advised by their own independent legal counsel – or at least to have the option to consult with an attorney – before signing a postnuptial agreement.
However, the law prohibits your spouse’s attorney from being the attorney who advises you about a postnuptial agreement. That would be deemed a conflict of interest.
Here in southern California, let an experienced family law attorney help you formalize a fair and enforceable postnuptial agreement with your spouse.
Your attorney can also ensure that you fully understand the agreement’s terms, provisions, and potential consequences.
WHAT IS THE SEPARATE PROPERTY PROVISION?
For many couples who seek a prenuptial or postnuptial agreement, the separate property provision is the most important part of the document.
Most married couples commingle their property and assets, but a postnuptial agreement lets spouses retain specified assets and other items separately from the joint marital assets and properties.
Most couples who craft and sign a postnuptial agreement will be seeking to keep separate at least some of the assets and property they owned prior to the wedding ceremony.
If you are one of the spouses, a postnuptial agreement will allow you to “keep what’s yours,” provided that no provision of the agreement violates California law.
WHY IS THE NUMBER OF POSTNUPTIAL AGREEMENTS INCREASING?
On the basis of a survey they conducted back in 2015, the American Academy of Matrimonial Lawyers tells us that in almost every state, growing numbers of married couples are seeking and signing postnuptial agreements.
Why? One explanation is that since the 1960s, high divorce rates in the U.S. have resulted in an increasing number of second marriages, and those who enter into a second marriage usually do it a bit more cautiously the second time.
If a couple did not sign a prenuptial agreement prior to their marriage, one partner’s reckless spending habits or suspicious behavior might be a reason why the other partner asks for a post-marital agreement.
WHAT’S THE REAL ADVANTAGE OF HAVING A POSTNUPTIAL AGREEMENT?
But even if the partners and the marriage are doing well, creating a postnuptial document can help spouses to define and understand their situation and standing more clearly and precisely by identifying the personal properties and spelling out the responsibilities of each partner.
Historically, it was generally believed that prenuptial and postnuptial agreements somehow “encouraged” couples to divorce. Only in the 1970s did prenuptial and postnuptial agreements begin to be recognized legally by a number of states.
Today, however, these agreements are common. Most people acknowledge that married couples who create postnuptial agreements are realistic and practical.
Although California places some reasonable restrictions on postnuptial agreements, the state’s divorce courts reliably and routinely honor postnuptial agreements that are legally valid.
The most significant restriction is that postnuptial agreements in California may not restrict child support. The right of a child to receive financial support from both parents is a fundamental, absolute principle of family law in this state.
CAN A POSTNUPTIAL AGREEMENT BE CHALLENGED?
Because we do not know what the future holds, over time, not every postnuptial agreement will necessarily continue to be in every partner’s best interests.
When the postnuptial agreement provides one partner with less after a divorce than the partner would have been entitled to without the postnuptial agreement, if there’s a divorce, that spouse may ask a judge to set aside the agreement.
Should that happen, the judge will decide if the postnuptial agreement is fair or unfair compared to what the court would have done without the presence of a postnuptial agreement.
And if the disparity is substantial, a judge in California has the discretion to set aside that provision of the post-marital agreement.
HOW CAN YOU LEARN MORE?
Spouses and married couples who want to learn more about postnuptial agreements should speak to a skilled family law attorney. You’ll have all of your questions answered and all of your concerns addressed.
And if your fiancé or fiancée has suggested a prenuptial agreement, or if your partner wants you to sign a postnuptial agreement, have an Oceanside family lawyer review the agreement for you to ensure that you fully understand its provisions, terms, and conditions.
Divorce is always difficult, but for far too many people, it’s also unexpected. “Happily ever after” may be the standard ending in movies and fairy tales, but in real life, no one knows what tomorrow will bring.
So, it’s best to be prepared – as far as possible – for anything. Talk with your spouse – and with a family law attorney – about a postnuptial agreement. It’s the smart thing to do.