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Post-Nuptial Agreements

A postnuptial agreement is a legal document that plays the same role as a prenuptial agreement, with the major difference being that it’s designed for couples who are already married or in a civil union. It’s performed to help resolve issues of property, assets, and spousal support in case of separation, divorce or death. When creating a postnuptial agreement, both parties are required to disclose all the money and property they currently own, including community property and separate property. This is followed by both parties coming up with rights and responsibilities for each party during the marriage.

Although California law defines the manner in which money and property are shared among the couple in case of a divorce or death, the courts can also use a valid postnuptial agreement to decide on the same. The advantage of having a postnuptial agreement is that it gives you and your partner total control over your assets and property, which would otherwise be controlled by the state. The validity of a postnuptial agreement is determined when it’s clear that both parties are fully protected and it was created based on full and fair disclosure of all assets and property owned by the parties involved. In addition, the contract must be created in the presence of their separate certified family law attorneys.

Postnuptial Agreement Attorneys in San Diego

If you and your spouse have agreed on creating a post-marital contract, working with separate lawyers who will cater to your needs is the best possible action you can take. A qualified family law attorney can help you avoid any conflicts of interests and ensure that your postnuptial agreement is fair and can be admissible in court. To retain a skillful and experienced attorney who’ll guide you in creating a valid and enforceable postnuptial agreement, consider San Diego Family Law Attorney. For a free, initial consultation call 619-610-7425 or fill out our online contact form.

What Is Required for Creating a Valid Postnuptial Agreement?

For your postnuptial agreement to be valid and enforceable, it must meet the following requirements:

  • Written - Your postnuptial agreement must be done in writing since oral agreements are not enforceable.
  • Disclosure – This is one of the important elements of a postnuptial agreement. When creating the postnuptial agreement, the parties involved are required to fully disclose to one another all the assets, income, and liabilities they have in possession. This step is significant since it helps avoid the possible annulment of a postnuptial agreement that might be as a result of one party relying on inaccurate or incomplete information when creating the contract.
  • Voluntarily – The couple entering a post marital contract must have signed the agreement intentionally and willingly. To avoid nullification of the contract, there must not be any sign of threat or coercion on one party into signing the contract.
  • Validly executed – When creating a postnuptial agreement, it’s important to make sure that the agreement meets the requirements of California laws.
  • Fair - Any postnuptial agreement that is patently one-sided based on the situations and facts will be considered null and void by the courts. Avoid creating unconscionable agreements.

What Are Some of the Things Included in a Post-Nuptial Agreement?

California has default laws defining how the wealth and property acquired by a couple during their married life is shared following a divorce. The couple, however, has the liberty to come to an agreement through a postnuptial agreement which allows them to come to an understanding on diverse conclusion on how their property will be divided. Despite being created during the marriage; a postnuptial contract not only covers issues related to spousal support but also the division of all marital debts. Below are some of the things included in a postnuptial agreement.

  • Governing Law

In determining the components of your postnuptial agreement, you should begin by understanding the governing laws in California. This is important given that the same governing laws are the primary source of reference used by the courts when reviewing the legitimacy of your contract. In order for you to avoid the nullification of your agreement by the courts, make sure you specify which state laws are applicable to your document. This is especially important if you file for divorce in California but you signed the postnuptial agreement in a different state.

  • Support

Postnuptial agreements often include spousal support, also referred to as alimony. In California, judges will determine alimony depending on the partner’s needs and the ability to pay.  To avoid huge differences in income which might be as a result of one partner forgoing their career to be a homemaker, it’s important to set the support amount in your contract in order to create certainty and even reduce conflict in the event of a divorce.

  • Assets and liabilities

The primary focus of a postnuptial agreement is apportioning ownership of assets and assigning responsibilities for any debts created during the marriage. In a postnuptial agreement, both assets and liabilities acquired by the couple during their marriage period must be shared amongst them at the time of divorce. In case you and your partner decide on keeping your possessions out of the divorce, it’s important you clarify which assets each party owns. With the help of an experienced family law attorney, you may be able to reinforce the specification by creating an agreement that keeps the ownership separate, despite the manner in which the property is utilized during the marriage or even how the title is held.

Significance of Disclosure

Chances of having a postnuptial agreement enforced are low compared to the same contracts created before marriage.  This is specifically established on the principle that married spouses have a primary duty of not acting out of self-interest. It is, therefore, imperative to ensure that you not only obtain a full disclosure of marital debts and assets but also evidence that the signing of the agreement was voluntary. If possible, allow yourselves some time to seek legal advice from your separate attorneys to make sure that you’re doing it right prior to executing or signing a written contract.

Forms of Postnuptial Agreement

In general, we have three different forms of postnuptial agreements in California. These include the following:

  • A tool for a couple to agree to relinquish spousal rights following the death of one spouse

This form of postnuptial agreement simply outlines how assets and property would be handled following the death of one spouse or partner. This agreement is created in a manner that it supersedes state laws or a will, which gives the living spouse definite rights to property and assets.

  • A means of providing spousal support and distributing property

This type of agreement is the most common and is meant to outline how both assets and liabilities will be divided among a couple in case of a divorce. Furthermore, the agreement also addresses spousal support or alimony. The agreement includes a number of provisions outlining that one partner waives the right to this kind of support in exchange for certain matrimonial possessions. This form of postnuptial agreement addresses assets and property brought into the marriage and those acquired during the marriage (separate property and community property.

  • A template that can be relied on as a separation agreement

Just like a separation agreement, this type of postnuptial agreements clarifies the manner in which child support, child custody, and even alimony would be handled during a marriage dissolution process. This agreement also highlights how liabilities and assets would be divided. The unique feature of this form of postnuptial agreement is that later on, it can be fused into the divorce judgment, which can have a reduced impact on the expenses and time spent in a divorce setting. 

Some Reasons Why a Couple May Enter into a Postnuptial Agreement

When a couple creates a postnuptial agreement, it does not imply that they are thinking of getting a divorce as it may be perceived by many. Here are some of the common reasons that may lead a couple creating a postnuptial agreement.

  • In some occasions, couples come up with a postnuptial contract basically to delineate each party’s wishes concerning the property they brought into the marriage.
  • In the event that one spouse receives a financial windfall either as lottery winnings, significant salary increment, or inheritance, the couple may want to safeguard their assets against any future uncertainties.
  • Some couple may create a postnuptial agreement as a way of punishing the partner for either cheating on them or breaking their trust. To some, the agreement may be used to indicate an assurance of a broken marriage by warranting a better-off settlement for the spouse in case the marriage ends in divorce or separation.
  • Spouses with children from the previous relationships or marriage may enter into a postnuptial agreement to ensure that certain assets would be given to their children no matter what transpires. This is a way of protecting the inheritance of their children.
  • In the event that one partner has quit their job to stay at home and take care of minor children, creating a postnuptial agreement can give him or her an assurance that he or she will be able to get the financial resources they may need in case of a marriage dissolution.  
  • In cases where one spouse has encountered several legal troubles or they have been financially irresponsible during the marriage, for example, a spouse has been convicted of multiple DUIs or has a gambling habit, signing a postnuptial agreement would be the best choice to safeguard the rights and future of the other partner and even children.
  • When a couple desires to amend a prenuptial agreement, they may do so by creating a postnuptial agreement which includes new or revised terms. The postnuptial contract spells out new terms and conditions, therefore making the old agreement void.

When to Avoid Entering into a Postnuptial Agreement

Just as with any legal contracts, it’s important for any person preparing to enter into a postnuptial agreement to ensure that they fully understand all the implications and provisions of such an agreement. To achieve this, you should seek the intervention of a legal expert who will help you understand the laws and implications of the agreement. Below are a number of reasons as to why you must take time to critically think through all issued before entering into or signing a postnuptial agreement.

  • Inadequate time given to one spouse to review the agreement

Postmarital contracts are permissible agreements and it is, therefore, imperative for the spouses to have equal opportunity to read and fully comprehend exactly how the agreement safeguards or restricts their rights. Claiming that you did not have a full understanding of what you were signing may not be admitted in the court and will likely not stop the enforcement of the agreement. It’s up to you to ensure that you study the document and get the clarification you need. This is why working with a knowledgeable postnuptial agreements attorney is recommended.

  • There being a considerable income difference between the couples

With substantial income disparity in a marriage, the spouse with lower income may find no value in entering into a postnuptial agreement since the agreement’s provision would not satisfactorily provide for them in case of a separation or divorce. This, however, does not indicate that spouses with lower income should not enter into a postnuptial agreement, it only cautions them to pay attention to details before signing this kind of agreement.

Given that both lifestyle and financial situation differs from one couple to another, there cannot be a standard answer used in determining whether or not you should sign a postnuptial agreement or not. The decision will depend on your marriage lifestyle and your financial situation.

Legal Assistance in Drafting or Enforcing a Postnuptial Agreement

A postnuptial agreement requires legal review for it to be enforceable. When signing this agreement, it means that you’re ready to replace other legal rights that you have with the terms of the contract. The consequences are therefore significant and permanent. Before you sign any agreement, it’s imperative to consult with an attorney who has an extensive understanding of these contracts. For instance, why not include a term that automatically terminates the agreement after a certain number of years or adjusts the property as the marriage endures longer? Getting an expert legal opinion before signing the agreement will help protect your rights and safeguard your future. Contact San Diego Family Law Attorney today at 619-610-7425 for legal help. Our goal is to give you peace of mind by handling the complex set of laws associated with postnuptial agreements on your behalf.


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