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Spouses and soon to be married couples, sometimes enter into prenuptial or postnuptial agreements that direct how property will be divided if their marriage ends in divorce. The difference between the two types of agreements depends on when the documents are executed. Prenuptial agreements are drafted and executed before couples are married. Postnuptial agreements are executed by couples after they are married.
Whether you are considering entering into a prenuptial or postnuptial agreement, or you have already entered into an agreement and are now contemplating a divorce, you need legal representation. California divorce attorney, Bruce A. Mandel, can help to make sure that your rights and interests are protected.
What Is A Prenuptial Agreement?
As briefly described above, a prenuptial agreement is a legally binding document entered into by a couple planning to get married. The agreement sets forth terms of debt and asset division between the couple should they decide to get a divorce. The agreement may cover assets or debts brought into the marriage and any assets or debts acquired during the marriage.
Prenuptial agreements are generally valid upon marriage so long as they comply with California laws. These agreements can be beneficial under the following circumstances:
- Either of you has been previously married
- Either of you has children from a previous relationship
- One of you has significant wealth
- When either or both of you own a business
- When wide and diverse assets are brought into the marriage
What Is A Postnuptial Agreement?
Postnuptial agreements, signed after a couple is married, are permitted within specific parameters under California law. These agreements are different because couples are already married, and unlike unmarried couples, married spouses have a fiduciary duty to each other. A fiduciary duty means that you and your spouse must act in good faith and each other’s best interests.
Postnuptial agreements are often entered into under the following circumstances:
- You were planning to enter into a prenuptial agreement but did not get it done before your wedding.
- Your financial situation changed, and one spouse came into an unforeseen or unexpected sum of money.
- You want to make it clear that certain assets are not marital property, such as an inheritance. Inheritance is generally considered separate property in California, but when it is combined with marital property, there may be room for a community property argument. A postnuptial agreement may make it clear that an inheritance is to remain separate property.
- You develop concerns about your spouse’s behavior, such as drug use or reckless spending, and you want to protect your finances.
The Importance Of Having Independent Counsel
Parties to property division agreements have the right to retain independent counsel, but they may also choose to waive that right. Our California family law attorney strongly discourages waiving your right to independent counsel, however. The division of property in divorce affects your overall financial well-being, and you need a legal representative advocating for your financial rights and protections.
You also have responsibilities in terms of disclosing all assets and debts, acting in good faith, and a duty of care to your current or future spouse. Independent counsel will help to make sure that you comply with disclosure requirements and that your financial rights are protected. Signing an agreement without legal counsel is a risk that you should not take.
Challenging Prenuptial And Postnuptial Agreements
Prenuptial and postnuptial agreements must comply with California laws. Agreements must be fair to both parties and not unconscionable. For example, a spouse may waive spousal support in an agreement. If a court decides that the waiver is unconscionable, those waiver provisions may not be enforced.
Each party must have complete information about the other party’s financials, including income, debts, assets, and property. When information is omitted, misleading, or false, the agreement or specific terms of the agreement may not be valid.
Parties must enter into the agreement ly and voluntarily. No one may be forced, coerced, threatened, or tricked into signing an agreement. For example, a court may not enforce a prenuptial agreement that was unexpectedly sprung on one party right before the wedding because that party may have felt pressured, threatened, or coerced into signing it.
Marital agreement terms that dictate child support and child custody may not be enforceable. When it comes to child support and custody, the child’s best interest is the standard, and it trumps any terms in a marital agreement.
Secure Your Future: Contact Us for Marital Agreement Guidance and Representation
If you have questions and need representation in a prenuptial agreement or postnuptial agreement matter, contact The Law Office of Bruce A. Mandel at 424-250-9130 or online. We will provide you with skilled representation and give you the guidance that you need to move forward with your marital agreement matter.