Postnuptial Agreements in California

Most people have heard of prenuptial agreements, signed before matrimony, but a lesser-known legal document is a postnuptial agreement. The two documents are similar in that they create rules for a married couple in terms of asset division and finances upon divorce or death, but they differ in terms of when the couple signs the agreement. If you and your spouse do not like the idea of signing something before you marry, a postnuptial agreement might be the perfect solution. Work with an attorney to make sure your postnuptial agreement in California is legal and valid.

What Is a Postnuptial Agreement?

In California, a postnuptial agreement is a legal document that protects one or both parties’ finances and assets in the event of a divorce. If the couple involved in the postnuptial agreement divorces, the terms of the signed document will preside over how the courts divide property and debts, as well as make other legal decisions. A postnuptial agreement does the same thing as a prenuptial agreement in this way. However, the couple will sign a postnuptial agreement after marriage, not before. A postnuptial agreement can create rules for many different things should the couple divorce.

  • Asset and property division
  • Investments
  • Inheritance
  • Premarital assets
  • Debts
  • Retirement and 401(k) accounts
  • Child custody and child support
  • Alimony or spousal support
  • Pet care
  • Legal issues in the event of death

Another key difference between a prenuptial and postnuptial agreement is the document’s validity. In general, the California courts assume a prenuptial agreement is valid upon the date it is signed. The courts will assume a postnuptial agreement is invalid, however, until they decide otherwise. You and your spouse will need the courts to approve your postnuptial agreement for it to become valid.

Requirements for a Valid Postnuptial Agreement

In California, the parties involved in a postnuptial agreement must follow certain rules for the document to be valid in a court of law. It is important to draft and sign a postnuptial agreement with help from a lawyer to ensure its validity after you and your spouse divorce, or after your spouse passes away. First, neither party must have been forced or coerced into signing the agreement; both parties must sign of their own free will. Second, the agreement must be in writing, have the signatures of both parties and be notarized. Third, the agreement must be clear, transparent and fair.

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

Creating a postnuptial agreement has no time limit. As long as your agreement fulfills California’s legal requirements, the courts will consider it valid no matter how long you have been married. In fact, postnuptial agreements are most common among couples who have been married for years, as they understand better how much each party has to gain or lose.

If you start to notice habits you fear could jeopardize your assets in the future, such as your spouse starting to get into debt or develop a gambling addiction, you could initiate a postnuptial agreement to protect yourself later. You may also wish to create a postnuptial agreement if your financial assets substantially change, such as if you start a new business that starts to take off. If you and your spouse have a child, this could also be a reason to revisit the idea of a postnuptial agreement.

Postnuptial agreements are not right for every couple in California. If you believe it could give you peace of mind about the future, however, bring the subject up to your spouse to see how he or she reacts. You can both schedule a meeting with an attorney for more information and professional counsel about postnuptial agreements to find out if one is right for you. If you decide to draft a postnup, your lawyer can help you with legal paperwork.