After couples are married, they sometimes enter into postnuptial agreements to ensure that their property rights will be protected if they decide to divorce. In general, marital agreements establish each party’s rights and obligations regarding their debts and assets. Before you decide to sign a marital contract, there are some things you should know about California’s postnuptial agreement law.
To protect your rights and help you avoid unpleasant surprises, if you are thinking about entering into a postnuptial agreement, you should speak with a family law attorney. See below to learn more about California’s marital agreement laws and how to make sure your rights and assets are protected should your marriage end in divorce.
Agreements Must Comply With Requirements
In California, postnuptial agreements must comply with the following requirements:
- The agreement must be in writing
- The terms must be lawful and fair to both parties
- It must be signed by both parties
- The contract must be notarized
Not All Postnuptial Agreement Terms Are Enforceable
Couples may agree to terms such as debt and asset division, and sometimes spousal support matters, but other terms are prohibited and will not be enforced by courts. For example, contract provisions regarding child support and child custody are invalid. Any terms that violate public policy or criminal statutes are also not enforceable.
The Postnuptial Agreement Language Must Be Clear
Courts will not enforce postnuptial agreement terms that are vague and ambiguous. General references to property that do not clearly define the property are typically invalid. The language and meanings should not be implied but should be direct and specific, leaving no question as to what the terms provide.
All Debts And Assets Must Be Disclosed
Before parties enter into a postnuptial agreement, they must each disclose all assets and debts. If one party fails to make proper disclosures, the court may find that the entire agreement is invalid and unenforceable. Types of assets and debts that must be disclosed include, but are not limited to, the following:
- Saving and checking accounts
- Retirement and pension accounts
- Real estate in California and in other states
- Student loans
- Credit card debt
- Vehicles and recreational vehicles
- Life Insurance
- All other obligations and assets
Court Approval Is Necessary
Unlike prenuptial agreements, postnuptial agreements need to be approved by a court in California. Prenuptial agreements are entered into before marriage, and they are presumed valid without court approval so long as they comply with California prenuptial agreement law. Postnuptial agreements, however, are not presumed valid until the court has approved them.
Spouses Have A Fiduciary Duty To Each Other
A significant difference between prenuptial and postnuptial agreements is that spouses owe each other a fiduciary duty after they are married, which means both parties must enter into a postnuptial agreement in good faith and fair dealing. In general, postnuptial agreements will not be enforced if the terms are unreasonable or unfair to one party.
Furthermore, California courts are critical of terms that waive spousal support in postnuptial agreements. Because spouses owe each other a fiduciary duty, spousal support waivers are heavily scrutinized by the court. Spouses must demonstrate to the court that the agreement terms do not breach one party’s fiduciary duty to the other.
Postnuptial Agreements Are Unenforceable Under Fraud, Duress, or Undue Influence
Postnuptial agreements are invalid if it is determined that one of the parties exercised fraud, duress, or undue influence over the other. Fraud generally exists when one party deceived or concealed an important fact that would impact whether or not the other party executed the agreement.
A spouse may not threaten or exert such pressure on the other that essentially makes his or her signature involuntary. Cases of undue influence and duress are difficult to prove unless you have evidence of the defendant’s improper threats, pressure, and coercive conduct. In some cases, evidence of a history of domestic violence can be used to support a theory of duress or undue influence.
Postnuptial Agreement Attorney
If you are thinking about entering into a postnuptial agreement in California, attorney Bruce A. Mandel can help. He will review your contract terms, discuss the potential implications and impacts of those terms, and make sure that your contract complies with California’s marital agreement law.
Contact our office online or at 424-952-4130 to schedule a free consultation. Follow us on Facebook for more information and updates about California family law, our law firm, and the types of cases that we handle.