California Postnuptial Agreement
Many people assume that a California postnuptial agreement is the same as a California prenuptial agreement but they’re not. Under California law, a California prenuptial agreement is assumed to be valid, while a California postnuptial agreement is assumed to be invalid.
Unlike a California prenuptial agreement, a California postnuptial agreement occurs after you are married. Your spouse’s questionable behavior or out of control spending during the marriage might prompt you to ask for a California postnuptial agreement. Even when the marriage is going well, couples may use a California postnuptial agreement to define things, such as each spouse’s separate property, financial responsibilities, or rights to the family business.
A California postnuptial agreement is a voluntary marriage contract between spouses that is created after their wedding. A California postnuptial agreement can be used to help resolve issues in marriage by removing a source of disagreement over finances, assets, or inheritances. Many client intended to enter into a California prenuptial agreement but simple did not have time before the wedding and now want to address financial and legal issues in the event of a divorce or a death – what will be done with the family house, investments, 401k plans and other such marital assets.
A California postnuptial agreement can be used to address the following:
- Which spouse is to pay spousal support and for how long.
- What is each spouse’s interest in the marital home.
- Which spouse keeps certain property and how marital assets are to be divided.
- Which spouse is responsible for marital credit card debts, loans, and mortgages
- Who is the designated beneficiary of a life insurance policy.
- Who is get the family pet – one of the most important and forgotten issues.
- How to divide property and assets if one spouse dies during the marriage
Generally, a California postnuptial agreement must meet the following criteria:
- It must be written; an oral agreement dividing marital assets is not enforceable.
It must be signed by both spouses; both spouses must sign the agreement and have their signatures notarized.
- It must be a voluntary act; to be enforceable, one spouse cannot threaten, deceive, coerce, or physically force the other spouse to sign the agreement.
- It must be fair; the California postnuptial agreement cannot be unconscionable or “extremely one-sided.”
- There must be full disclosure; both spouses must disclose all information about their assets, income, debts, and property.
California courts scrutinize California postnuptial agreements that waive or limit post-divorce spousal support. Further, like most states, a postnuptial agreement addressing child custody or child support is not enforceable.
If your spouse’s attorney has prepared a postnuptial contract for you to sign, you should take time to have your own attorney, who is experienced in drafting postnuptial agreements, review the document for you. Your spouse’s attorney cannot advise you because it would be a conflict of interest. California courts are unlikely to enforce a postnuptial agreement where only one spouse was represented by an attorney.
Remember, you may be giving up rights or interest in property which may be remedied with the help of an attorney. You can always negotiate the terms of a postnuptial agreement before signing, but once you’ve added your signature, it might be too late.
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