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Your Complete Guide to California Postnuptial Agreements

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What is a Postnuptial Agreement?

Discussing prenuptial and postnuptial agreements with your spouse or fiancée is a difficult conversation. These marriage contracts have a negative reputation and are perceived to take the love and romance out of a marriage by reducing that marriage to a civil contract between two people. Despite this, they play a significant role in marriages, and if you are able to have a productive discussion with your partner, they could prove invaluable to you and your estate should the worst ever occur and your marriage does not work out. Not to mention the value it brings to your marriage when it comes to communication and transparency.

Most people are familiar with the concept of a prenuptial agreement. Prenuptial agreements (or prenups for short) are voluntarily signed marriage contracts between two people who are engaged to be married that spell out what should happen to marital property, spousal support, and other matters in the event of a divorce. In states like California, which are community property states, prenups are extremely valuable, as they state how the division of assets should be conducted should your marriage end in divorce. A prenup is written and signed prior to the marriage taking place, and the terms of divorce are established upfront. A postnuptial agreement (or postnup) is a lesser-known concept but works similarly.

While a prenuptial agreement is drafted and signed before the wedding, a postnuptial agreement is established after the wedding. A well-written postnuptial agreement can help resolve issues before they arise, getting rid of what may be a cause for a contested divorce over disagreements related to property division, debts, finances, and inheritances. A postnuptial agreement can also address alimony (also known as spousal maintenance or spousal support).

Another key difference between a prenuptial agreement and a postnuptial agreement is when the document is considered valid. California family law courts assume that prenups are valid as soon as they are signed and dated. There is an assumption by the courts that a postnuptial agreement is to be considered invalid until they determine otherwise. This only means that you and your spouse will require a family law judge to approve your postnuptial agreement in order for it to become valid.

There is a misconception that postnuptial agreements are less enforceable than prenups are. This is not true. It does not matter when the nuptial agreement was written or signed. Rather, it is about what is inside the agreement that counts. How the agreement was written, its procedural integrity, and the mental state of the spouses at the time of signing will be under scrutiny, so enforceability is not guaranteed. However, so long as your postnuptial agreement was drafted according to the law, appears to be fair and just, and was signed with full voluntary consent, it should stand up in a court of law.

Like any contract, a postnuptial agreement should be in writing. While the involvement of a family law attorney is not legally required by California law, it is nonetheless highly recommended. You will likely need assistance from an experienced postnuptial agreement attorney to ensure that the postnup was drafted according to the law and can be executed properly. Our law firm has extensive experience helping clients with family law difficulties. This includes and extends to marriage contracts like prenups and postnups. We encourage you to reach out to our law firm for legal guidance if you are considering writing a postnuptial agreement for you and your spouse.

What Are the Legal Requirements for Valid Postnuptial Agreements in California?

According to California family law, the writing and validating of postnuptial agreements are bound by specific legal requirements.

Both spouses must willingly consent and agree to the terms of the postnuptial agreement. Additionally, the postnup must be in a written format. Verbal postnuptial agreements are invalid.

It’s essential that both spouses fully disclose their financial assets. Hiding assets could be met with harsh consequences later on. Any concealment, deception, or fraud will likely result in the postnuptial agreement being invalidated in court.

Family law courts must also believe that the agreement is fair. If a judge believes that the postnup is significantly biased or unfair to one spouse, the document may not stand up in court. To help avoid this, it is recommended that both spouses retain professional legal counsel independently to review the agreement prior to putting a signature on the contract. Independent legal representation will ensure that both spouses fully comprehend the scope and implications of the postnup and can negotiate for fairer terms if necessary.

California law requires a one-week waiting period from when the agreement was completed and presented for review to when it can be signed. The waiting period allows both parties time to review and fully understand the postnuptial agreement before putting ink to paper and signing their names.

Finally, a legally valid postnuptial agreement cannot dictate terms for child custody or child support obligations. Family law court determines these matters based on guidelines and the child’s best interests at the time of the divorce.

How Does California’s Property Division Work in Divorce Cases?

California is a community property state. This means that any property acquired during the course of the marriage shall be considered marital property and subject to property division upon a divorce. Property acquired prior to the marriage should be considered separate property and not vulnerable to the division of property. Additionally, if one party accrues substantial debts during the marriage, these debts may be shared by both parties. (One exception to this is that, in some cases, student loan debts are considered separate debts as they are to the educational benefit of one party. This does not always apply, however.)

With a postnuptial agreement, it is possible to establish the terms of the division of assets should a marriage end in divorce. A valid postnuptial agreement can establish certain properties as separate property, meaning that only one spouse owns that property, and therefore that property would not be subject to the division of assets.

A postnuptial agreement can also address premarital assets and how those should be distributed in the event of a divorce.

Assets that should be considered for property and asset division include:

  • Determination of what should be considered community or separate property.
  • Division of financial assets.
  • Division of real estate property.
  • Motor vehicle distribution.
  • The allocation of debts.

What Can and Cannot Be Included in California Postnuptial Agreements?

Postnuptial agreements are guided by the same state laws that guide prenuptial agreements in terms of what is and is not allowed to go into the marriage contracts.

The following are commonly included in postnuptial agreement contracts:

  • Determination of separate property.
  • Division of community property in the event of a divorce.
  • How family home equity shares will be divided between the spouses should the marriage come to an end.
  • How real property will be handled in the event of one spouse’s death during divorce proceedings.
  • How to divide marital debts, if any. Marital debts may include mortgage loans, credit card debt, medical expenses, and more.
  • How to handle the division of assets in the event of the dissolution of marriage.
  • Whether or not either of the spouses should provide alimony after a divorce, how much that alimony will be, and for how long the alimony payments should continue.
  • Who gets to benefit from the life insurance policy?
  • Who gets to keep and care for family pets?

There are several considerations that are not allowed to be included in postnuptial or prenuptial agreements in California. If your postnuptial agreement includes any of these unallowed factors, the agreement may be determined to be invalid, or, at the very least, these terms of the agreement will be ignored.

  • The following cannot be included in postnuptial agreements:
  • An unfair decision on which spouse shall provide spousal support.
  • An unjust determination of which spouse gets what property after the divorce.
  • Any language related to child custody, child support, or visitation rights.
  • Any provision that contradicts California public policy or California law.
  • Any provision that penalizes a spouse for cheating in the marriage. This is an invalid provision as California is a no-fault divorce state.

Why Do Married Couples Draft Postnuptial Agreements?

Marriage contracts like postnups are usually drafted when a married couple feels that they are heading in the direction of a separation or divorce. However, sometimes there is another cause to consider such a marriage contract, such as instances when one of the spouse’s assets significantly changes. For example, if one of the spouses opens a business, takes on new debts, inherits a large amount of wealth, or finds new success, they may wish to ensure that these assets are considered separate property. (In California, an inheritance is typically considered separate property by default, but there are exceptions.)

A lot can change over the course of a marriage, both good and bad. It’s not unimaginable to consider that negative changes may occur and make your marriage seem less appealing and something that you’re unwilling to stay in. For example, if your spouse becomes aloof, unloving, or even abusive, it may be time to consider a postnuptial agreement prior to filing for legal separation or divorce.

Whether you have decided to draft a postnup or you merely wish to understand the benefits of such a marriage contract, it is recommended that you speak with family law lawyers experienced in these practice areas. Our family law firm has years of experience and knowledge in the practice of writing valid and enforceable marriage contracts like prenups and postnups. To learn more about our legal services, don’t hesitate to get in touch with our law offices to schedule your initial consultation today.

What Are Common Grounds for Contesting a Postnuptial Agreement in CA?

Postnuptial agreements can be contested. If one party believes that the marriage contract was signed under duress or coercion or that a full disclosure of assets was not provided, they may challenge the postnuptial agreement. Similarly, if a party believes that the postnup is unconscionable or significantly unfair to one spouse over the other, they may have grounds for contesting it. Contested postnuptial agreements can lead to costly courtroom trials and litigation in order to resolve.

Common grounds for contesting postnuptial agreements in CA include:

  • A failure to disclose all assets at the time of the contract signing.
  • Evidence of coercion.
  • Evidence that the postnuptial agreement was signed under duress.
  • The postnuptial agreement is unconscionably unfair to one party.
  • There was a violation of the seven-day waiting period.

If you have cause to challenge a postnuptial agreement as your marriage heads towards a separation or divorce, you must retain professional legal representation from knowledgeable family law attorneys. Contact our law firm for legal assistance contesting postnuptial agreements.

How Long After the Marriage Ceremony Can You Create a Postnuptial Agreement?

There is no time limit for when you are allowed to draft a postnuptial agreement in your marriage. In fact, most potential agreements are written by couples who have been married for many years, as they understand how much they stand to gain or lose in a divorce. So long as the postnup fulfills the California legal requirements, it should be considered valid regardless of when in a marriage it was written.

There is, however, a seven-day waiting period between the time when the postnuptial agreement was written and presented and the time when it is allowed to be signed. This one week is meant to provide both parties ample time to review the terms of the marriage contract with their attorney before making an educated decision on whether to sign.

Can a Prenuptial Agreement Be Revised or Updated?

Most postnuptial agreements are for spouses that do not have a prenuptial agreement. However, there are some exceptions to this rule.

Many prenuptial agreements can be modified so long as both spouses sign off on the modifications. There may be many reasons to consider changing or revising your prenuptial agreement, including changes in your marital property or the number of children you and your spouse have. Prenuptial agreements can be modified by adding terms, amending provisions, or removing specific language.

There are two ways to modify an existing prenuptial agreement in California: either by altering the existing prenup or creating a brand-new marriage contract.

Most prenuptial agreements have language in them that allows for amendments or termination of the marriage contracts. If this is the case, you and your spouse may opt to modify your existing prenup. If, however, your prenuptial agreement does not contain terms about amending or revoking the document, you will be unable to add new information or terms to the contract. If this is the case, you and your spouse should create a new agreement — it may need to be a postnuptial agreement if you and your spouse are already married.

Those looking to modify existing marriage contracts or write new marriage contracts are advised to speak with family law lawyers for legal advice. Please get in touch with our Campbell, California, law office to schedule a case review today.

When Should You Avoid Signing a Postnup?

Just like any other legally binding contract, a marriage contract requires that all parties involved take adequate time to review and understand the terms laid out in the document. You should only sign a postnuptial agreement if you understand and agree with all of the provisions and implications included in the agreement.

There are several reasons why you may wish to continue negotiating the terms of the postnuptial agreement before signing it.

If your spouse does not provide you with enough time to read and evaluate the postnuptial agreement, you should avoid signing it. Both parties must have ample time to read and comprehend the contract so that they understand their rights and responsibilities as laid out in the agreement. Claims that you did not understand the agreement terms when you signed will not make the postnuptial agreement unenforceable under the law. It’s crucial that you take the time to read and seek clarification when you don’t understand something. It may be recommended that you each retain independent legal counsel to read and review the marriage contract before signing.

It is important that postnuptial agreements be fair. If you or your partner makes much more money than the other, consider whether the contract adequately covers the needs of the lower-income spouse should the marriage end in divorce or legal separation. Please note, however, that this does not mean that spouses who make different levels of income should not enter into postnuptial contracts. It simply means that you should be aware of fair rights, responsibilities, and terms. Consider the division of assets and debts, as well as terms for spousal maintenance, before signing the contract.

However, having a contract in place is generally going to be a better choice than leaving it up to the law and spending thousands of dollars on attorney fees. Even if you give something up, the overall value to your bank account and you peace of mind are something to seriously consider.

Contact Our Family Law Firm to Schedule an In-Depth Consultation

Whether you are writing a new contract, contesting an existing contract, or trying to enforce the marriage contract in a court of law, it is recommended that you retain professional legal representatives for your case. Hepner & Pagan is a family law firm with extensive experience helping clients write and review postnuptial agreements in the state of California.

To learn more about our legal services, we encourage you to contact our law firm to schedule your initial consultation, wherein we will discuss your case in more detail and help you determine your legal options going forward. You may get in touch with us at 408-688-9153.

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