When taking marriage vows, most people don’t anticipate separating or divorcing; however it is always a possibility. Prenuptial and postnuptial agreements were created in order to protect each spouse if one spouse comes into the marriage, or during the life of the marriage, with substantial means. It protects the spouse with considerable assets, but typically also protects the spouse that has substantially fewer assets.
Many couples in California have heard of and even considered, prenuptial agreements prior to getting married. However, many individuals are not as familiar with postnuptial agreements and how they are used, which is governed under California Family Code Section 1500. Prenuptial agreements are made prior to a marriage, outlining each soon-to-be spouse’s separate property, how assets will be divided at divorce, spousal support, as well as other conditions the parties can write into the agreement.
Postnuptial agreements differ in that these agreements are created after the marriage has already occurred, usually years later. Unlike prenuptial agreements that are considered valid once completed, the postnuptial agreement is not considered a valid agreement until filed with the family court and accepted by a judge.
Before marriage, it is relatively simple to determine separate property, thus a prenuptial agreement is found valid for this reason. However, after years of marriage, separate property becomes shared and harder to separate. A judge must approve a postnuptial agreement in order to ensure that it is fair and equitable.
Below, postnuptial agreement specifics are discussed to give you a better understanding of why you may need one, what the requirements are, and tips when going through the process. Having an experienced family law attorney create your postnuptial agreement ensures that it follows the requirements, is fair, and expertly represents your interests.
Why Do I Need A Postnuptial Agreement?
Postnuptial agreements are usually created in anticipation of separation or divorce. Postnuptial agreements can outline how assets are divided, child custody, separate property, and various other provisions that ensure an agreeable parting of ways. A postnuptial agreement prior to divorce assists in the divorce process by doing most of the work that is required during the process. For example, one of the steps is the division of assets. Your postnuptial agreement will already have outlined how assets are divided, saving you this step in the divorce process.
Another reason a postnuptial agreement may be needed is when one spouses’ assets significantly change during the marriage. For example, if a large inheritance is suddenly passed to one of the spouses’, they may wish to make sure, in a postnuptial agreement, that this remains separate property. In California, inheritance is typically always viewed as separate property, however, there are exceptions. After years of marriage, it may be hard to properly evaluate the inheritance if it has been combined within joint marital accounts for example.
If your spouses’ behavior suddenly changes, they become abusive or start abusing substances, this may be a time to consider a postnuptial agreement in order to protect your assets. This doesn’t mean that you are going to file for divorce but should something happen, you can at least make sure you are protected. Discussing this with a family law attorney is the best option, especially if your spouses’ moods change quickly, or they become unreliable.
Requirements For A Valid Postnuptial Agreement
California has specific requirements for creating postnuptial agreements. The first three requirements are relatively simple. The postnuptial agreement must be written (preferably typed), signed by both spouses and properly notarized. These are the foundational requirements for the family court judge to even consider the agreement as enforceable.
The additional requirements address the fairness aspect of the postnuptial agreement. These requirements are:
- Neither spouse can be forced to sign the agreement. This includes threats, deception, coercion, and the use of physical force. The postnuptial agreement must be signed and entered into freely and voluntarily. A judge will not enforce an agreement that is only serving one spouse.
- The postnuptial agreement must be fair, as previously mentioned. The agreement cannot be so swayed in one spouses’ favor leaving the other spouse with less then what they had coming into the marriage. The agreement cannot be “unconscionable”.
- Lastly, the parties must be honest and transparent with each other, assets must be fully disclosed. Hiding assets, debts, income, or property will invalidate a postnuptial agreement.
Another reason why having a skilled attorney drafting your postnuptial agreement is based on what happened in In re Marriage of McCourt. The issue was that language converting separate property to community property in the postnuptial agreement was vague. The court, in this case, stated that language changing ownership must be an “unambiguously, express declaration”. It is not common for many spouses to know the different nuances of the law.
Tips When Creating A Postnuptial Agreement
Helping create a postnuptial agreement with your attorney, your spouse, and their attorney can become overwhelming and confusing. Here are some tips to keep in mind when going through the postnuptial agreement drafting process.
- Try to keep track of the different number of drafts created. Often your attorney will prepare a draft and send it over to your spouses’ attorney, who in turn will make changes and send it back. Knowing what draft you are reviewing is essential because you need to understand what you are agreeing to.
- Review the final draft with your attorney. Even though your attorney has read through the agreement and states it is enforceable, you are the only person that knows exactly what assets and debts should be divided and how. Make sure to review the final postnuptial agreement in the presence of your attorney.
- Make sure to initial every page. This may sound like a tedious task, but your spouse can challenge part of the postnuptial agreement if a page is not initialed. Your spouse could say the page was “slipped in”.
- Make sure your postnuptial agreement has a severability clause. A severability clause allows for the postnuptial agreement to remain valid even if one section is not valid. Typically, if one area of a contract is not valid or legally enforceable, then the entire contract is invalid. However, with a severability clause, your attorney can remove the section that the judge chooses to not enforce, and keep the rest of the postnuptial agreement valid.
Contact An Experienced Divorce Attorney To Learn More About Postnuptial Agreements
With postnuptial agreements on the rise, it is important to consider if this type of agreement would work in your situation. A postnuptial agreement is helpful if you and your spouse are considering divorce or separation, one spouse recently acquired significant assets, or your spouses’ behavior has drastically changed and you want to protect your assets.
Your family law attorney will ensure the requirements of a postnuptial agreement are met, as well as the additional requirements the courts look to, ensuring your interests are well represented. Lastly, remember the tips we touched on to help you better understand and keep on top of the process.
If you would like to learn more about postnuptial agreements or any other areas of concern, contact divorce attorney Bruce A. Mandel today. You can also follow us on FaceBook, and reach us at (424) 250-9130. With almost three decades of advocating on the behalf of clients in the family law field, you can rest assured your interests are expertly represented.