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Exactly What Can Be Put In A Postnuptial Agreement?

Exactly What Can Be Put In A Postnuptial Agreement?

Most people have a general understanding of how a prenuptial agreement works from popular media. But what is a postnuptial agreement, and how is it similar and different from a prenuptial agreement? And what can be included in a postnuptial agreement in California?

Postnuptial Agreement, Defined

A prenuptial agreement is a contract defined under California Family Code that a couple goes into before marriage. It sets out both partners’ property and financial obligations and responsibilities should the marriage end. A postnuptial agreement is similar in scope, but it is executed after the marriage has already occurred.

While a prenuptial agreement and postnuptial agreement are similar, there are some legal differences. Once a couple marries, they owe one another a higher legal duty to act in good faith. Consequently, both parties need to take particular care when signing a postnup.

Furthermore, the validity of prenuptial agreements is usually presumed by the court, but it sometimes views postnuptial agreements with more skepticism, especially if it appears that one partner benefits more than the other from its terms.

Who Can Benefit From A Postnuptial Agreement?

Today’s reality is that a large percentage of marriages end in divorce. Unfortunately, divorce is not an ideal time to try to work cooperatively with a soon-to-be ex-spouse. This is why many couples choose to sign a pre or postnuptial agreement.

Having a prenuptial or postnuptial agreement allows partners to make these important decisions for themselves in a non-confrontational and cooperative way. And when these matters are already decided, it can save couples from costly and contentious litigation in the event of a divorce.

Sometimes, a couple realizes the value of this type of agreement after they are married and no longer have the option of a prenuptial agreement. In other cases, couples want to clarify what marital property is and what is not.

One spouse may have serious concerns about the spending habits of the other and want to protect themselves. Depending on each unique situation, there are many reasons that couples choose to create a postnuptial agreement.

What Can A Postnuptial Agreement Clarify And Enforce?

Much like a prenuptial agreement, a postnuptial agreement will set out the obligations and responsibilities of the married parties if one dies or the marriage ends. These can include clarifying

  • Property ownership structure
  • Spousal support
  • Household expenses
  • Responsibility for liabilities and debts
  • Health benefit rights
  • Death benefit rights
  • Disposition of property
  • Retirement benefit rights
  • Inheritance rights

While property, assets, and debt acquired by the couple during the marriage are typically considered community property in California, a postnuptial agreement can further clarify and ensure each partner’s separate rights outside the state’s community property laws.

Postnuptial Agreements Require Transparency By Both Parties

Both individuals must enter into a postnuptial agreement voluntarily and with full knowledge of the financial situation of the other. Both pre and postnuptial agreements must be fair to both parties under California law, which means that both parties must go into it with a clear understanding of each others’ assets, debts, income, and properties.

If any information in a postnuptial agreement has been omitted, falsified, or is misleading to the other partner, the agreement may not be enforceable. The courts in California are also particularly cautious when it comes to any postnuptial agreement where a spouse has agreed to things against their own interest, such as waiving or limiting spousal support.

Postnuptial agreements address financial and property matters. You cannot use your postnup to determine child support, custody, or visitation. The court will always give priority to the child’s best interest in these cases, and a postnuptial agreement cannot dictate these.

Getting Skilled Legal Guidance

If you and your spouse have questions about or are considering a postnuptial agreement, each of you will want to ensure that its terms are fair. Signing a postnuptial agreement can be risky without experienced legal guidance. Family law attorneys usually suggest that both parties have their own legal counsel to ensure that the agreement’s terms are fair and enforceable for each.

There are many things to consider when signing a postnuptial agreement. Understanding your rights and obligations under its terms is critical. Bruce A. Mandel has dedicated his career to families and their legal rights in California. Call (424) 250-9130 or contact him through his website contact page to schedule a confidential consultation.

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