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Post-Nuptial Agreements

If you and your spouse are considering getting a postnuptial agreement in California, you will need expert legal help from an experienced family law lawyer to help craft a complete and legally enforceable agreement.

It is not at all uncommon for people who would have liked a prenuptial agreement to have been too busy to get one before getting married, or to have delayed getting a marital agreement for some other reason. But be assured that a postnuptial agreement can do everything that a prenuptial would have - it is primarily only the timing of the agreement that differs.

At California Divorce Attorney, we can assist you in establishing a postnuptial agreement, in changing provisions of an existing prenuptial agreement, or in challenging/defending a marital agreement in a divorce case. Contact us today by calling 858-529-5150, and we can give you a free consultation and help you better understand what California law says on these matters.

What Is a Postnuptial Agreement and Why Get One?

In California, you can get what is essentially the total equivalent of a prenuptial agreement after you are already married - and this is termed a "post-nuptial" agreement.

Some people think that postnuptials are somehow invalid or can't be enforced like prenuptials, but that is simply not true. It is not the timing of a nuptial agreement but its content and procedural integrity in being reviewed and signed that makes it valid or invalid under California law.

Sometimes, a spouse will want to get a postnuptial agreement because of out of control spending or other reckless behavior of the other spouse. Or, it could be he or she is already thinking about getting a divorce down the road OR fears his/her spouse may do so.

BUT, people with marriages that are healthy also often seek a postnuptial agreement simply to establish how property division and other matters would be handle in the event of a divorce or of the death of either spouse.

OR, it could be that the financial situation of the marriage has changed substantially. For example, if the earnings of both spouses were fairly equal at marriage but now it's very lopsided, there might be a desire to affirm community property rights. OR, if separate property is acquired through a large inheritance by one spouse, there might be a desire to convert it to community property. Sometimes, one spouse staying home to care for a handicapped child, or the desire to ensure inheritance rights to a child from a previous marriage, or a host of other issues can lead to a couple seeking a postnuptial agreement.

Issues of how property, inheritance rights, spousal support, business and investment holdings, and pension plans will ultimately be handled under various scenarios can be settled ahead of time in a pre or post nuptial agreement, and that often prevents unnecessary disputes or problems later on.

Are Prenuptial and Postnuptials 100% Equal?

Like we've said, a postnuptial agreement can be just as valid as a prenuptial one and can cover all the same issues. But, it's also true that the burden of proof shifts with post versus pre nuptials.

With a prenuptial agreement, it is assumed valid unless shown not to be. With postnuptial agreements, it's just the opposite.

There are many legal and practical reasons for this shift, including that separate property not designated as such before the marriage is harder to prove to be indeed separate and not community property. Plus, the fact that one spouse or the other being pressured or coerced into signing the agreement is higher with post-nups versus pre-nups, also factors in there.

But that doesn't mean that postnuptials that pass the legal test are any less valid than prenuptials. It's true they will come under greater scrutiny in the event of a divorce, but a good family law lawyer will know how to do everything possible to ensure they are enforceable.

What Can and Cannot Be Included in a Postnuptial Agreement?

The rules for what can and cannot be included in a postnuptial agreement are the same as for prenuptial agreements. First, here are some of the things commonly included:

  • Deciding which spouse would retain particular pieces of marital property.
  • If there will be spousal support in the event of a divorce and how much would be paid by whom to whom. (There are limits on the ability of marital agreements to regulate this, however.)
  • How community property would be divided in a divorce or if one spouse passes away. This can include issues of inheritance rights.
  • Which specific debts would be paid by which spouse if a divorce occurred. (Again, there are limits on this.)
  • What share of equity in the family home goes to each spouse.
  • Who is the beneficiary of a life insurance policy?
  • Who will keep the family pet(s)?

Here are a few things that can't be validly included in a postnuptial agreement:

  1. Anything that conflicts with California state law or public policy.
  2. Any limitation put on child support, custody, or visitation issues.
  3. A "penalty" provision for a spouse who is unfaithful or for another reason. This is not valid since California is a no-fault divorce state.
  4. An unfair or extremely lopsided way of determining spousal support or post-divorce property division.

Requirements to Make a Postnuptial Agreement Valid

Just like with prenuptial agreements, you can't just come up with anything and follow any old process in ratifying the agreement. There are specific legal procedures and requirements that apply. Here are some of the most important ones to keep in mind:

  1. It must be a written contract. Oral agreements have no validity in this instance.
  2. The signatures of both spouses must be on the agreement, and the signing must be notarized.
  3. Both spouses must voluntarily sign the agreement. No one can force their spouse to enter a postnuptial agreement, and a coerced agreement is the same legally as no agreement at all.
  4. Both signers must have been fully informed about the contents of the postnuptial and have had legal counsel so they could understand how it would likely affect them.
  5. There must have been a 7-day wait period between receiving and signing the postnuptial agreement. 
  6. In most cases, you have to have a separate lawyer for each spouse unless very strict criteria are met so you can both use the same attorney.
  7. You cannot ratify a post (or pre) nuptial agreement without the help of an attorney or it won't be enforceable.
  8. All existing income, property, and debts of each spouse must be fully disclosed.
  9. The agreement can't violate any laws or be overly one-sided, which is legally termed "unconscionable."
  10. There are additional legal requirements that sometimes apply to postnuptials even beyond those of prenuptials.

Things to Consider Before Signing a Postnuptial Agreement

There are some situations where it might not be wise to get a postnuptial agreement, and you should never get one without having your own lawyer (not your spouse's) review the agreement first. In fact, courts often won't enforce a postnuptial agreement if you and your spouse used the same lawyer because it could be considered a conflict of interests. This is especially so if your spouse's lawyer drew up the agreement and just handed it to you to sign.

Also, it can be very difficult to get a postnuptial agreement if you are already in the process of getting a divorce or legal separation. In fact, that won't likely hold up even if the other party signs it. At that point, you should be thinking about a settlement agreement of some kind instead (which we at San Diego Divorce Attorney can also assist you with.)

Be sure a postnuptial agreement is in your best interests before signing it. Will you get less alimony and/or community property because you sign versus if you did not? An experienced California family law lawyer can help you find out.

Sometimes, a well to do spouse who wants to get out of alimony or property loss after a possible divorce will try to use a postnuptial agreement to accomplish this. A judge may invalidate the agreement anyway in that case, but you can't be sure of that. And once you sign, it may be too late to change the agreement's terms.

Realize that you can always attempt to negotiate on the terms of a pre or post nuptial agreement before signing it. A good lawyer will help you to negotiate wisely and in your own best interests. 

Finally, don't think that you can cancel a postnuptial agreement by saying "I didn't even read it." If you just scan the content quickly and don't ask your lawyer to explain to you terms and clauses you don't understand (because it's written in "legalese"), you might sign without knowing what's in it. But while other factors can illegitimize the contract, lack of reading it cannot.

Will My Postnuptial Agreement Really Be Enforced?

Obviously, there is no way to look into the future and know 100% for sure if a judge will decide to uphold a pre or post nuptial agreement. But, if everything passes legal muster, there is no reason it should not be enforced.

We at San Diego Divorce Attorney have extensive experience in drafting, ratifying, and defending legally sound pre and post nuptial agreements in California. We also know how to spot unenforceable elements of an existing postnuptial to the benefit of our clients.

That said, you should realize that courts in California are much stricter in how they treat a postnuptial versus prenuptials. The reason for this is that the agreement is viewed just like a business contract, and the existence of a marital contract increases the legal responsibilities of the spouses to each other as opposed to those of finances to each other.

One of the biggest problems that comes up with postnuptial agreements that end up unenforceable is the lack of full disclosure of assets and income by both spouses. If something was being hid, it could make the agreement invalid.

And there can't be any coercion, threats, taking advantage of someone mentally ill, or any kind of fraudulent or illegal activity involved in getting the other spouse to sign.

And again, if the process was invalid or if the contents are impermissible, all or at least a part of the postnuptial agreement will be thrown out by any judge presiding over a potential divorce case.

Why Choose San Diego Divorce Attorney?

We at San Diego Divorce Attorney are well seasoned family law attorneys with extensive and wide-ranging expertise in handling postnuptial agreements, prenuptial agreements, and a host of other family law issues from start to finish.

We know the law and we know the local courtroom processes and legally required procedures like the backs of our hands. 

When you are looking to establish a legally valid postnuptial (or prenuptial) agreement in California, you can't afford to rely on a novice. Your agreement won't be worth anything unless all the legal Is are dotted and legal Ts crossed to the satisfaction of a judge handling your case.

We have helped numerous others draft fair, mutually agreeable, and legally enforceable postnuptial agreements, and we stand ready to do the same for you.

We are skilled negotiators who can help ensure your postnuptial agreement won't be against your best interests. And we can give you sound, detailed advice in a timely manner to empower you to make the best possible decisions on any postnuptial agreement you and your spouse may formulate and sign.

Contact Us Today for Assistance

At San Diego Divorce Attorney, we have extensive, local experience with California post/pre nuptial agreements and all related legal matters.

We have assisted many others in San Diego and all of Southern California in forming an enforceable postnuptial or in challenging or defending one in a divorce case. We understand what can and can't be in a postnuptial and what the exact process needs to be to ensure an agreement is valid.

For answers to any questions you may have about a postnuptial or for a free legal consultation on any California family law matters, feel free to contact us today by calling 858-529-5150!

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