Providing Divorce Mediation Services Throughout California
Getting a prenuptial agreement (prenup) before getting married can be difficult. It can be awkward to have the discussion with your soon-to-be spouse, and you are busy with preparing for the wedding. Fortunately, if this was important to you, you can still obtain something similar to a prenuptial agreement while married – called a postnuptial agreement.
Prenuptial and postnuptial agreements are similar in one aspect: They both create rules (for soon-to-be-married or married couples) regarding the division of assets and finances. These rules change the rules your state would impose on the couple for divorce and death. However, the prenup is made before marriage, while the postnup is made after marriage.
A postnuptial or post-marital agreement in California is a legal contract that spouses sign after marriage. It outlines the division of assets and property and financial responsibilities in the event of divorce. It can also and often does include agreements regarding death, as well. To understand how legal separation compares to divorce in such agreements, this article explains the key differences.
To make your postnuptial agreement valid in California courts, it must be fair, signed voluntarily (by both couples), and follow California-specific guidelines and laws.
Let’s explore the postnuptial agreement in more detail to learn about its important elements, the differences between a prenuptial and a postnuptial agreement, common grounds for contesting a postnuptial agreement, and issues that a postnup cannot cover.
Merriam Webster defines postnuptial agreement in these words:
“An agreement made between legally married spouses regarding division of assets and marital property and that is usually formulated in contemplation of divorce or separation.”
A postnuptial agreement is similar to a prenuptial agreement but signed after the couple’s marriage. It addresses legal issues that would arise in the event of divorce or the death of either spouse. California courts scrutinize these written contracts before validating them.
California is a community property state. California family laws regarding community property will apply to you if you do not have a valid prenup or postnup. Basically, all income, property, or earnings received in marriage are community property that are equally shared between the spouses, even at divorce. If you’re concerned about financial implications, such as avoiding alimony, it’s important to understand your options. If you do not believe this is the right financial makeup for your relationship, you really need to consider having a prenup or postnup. If you and your spouse keep your accounts separated during marriage, this does not prevent you from having community property – or having those accounts equally divided at divorce.
Let’s see how the California Courts Self-Help Guide defines these terms:
Community Property: It is the property or assets you own or owe together during your marriage.
Separate Property: It is the property or assets each of you own or owe individually before you married or after you separated.
In the situation of divorce or death, an enforceable postnuptial agreement will dictate what happens to the spouse’s assets and debts. In divorce, a postnuptial may also detail whether there will be any spousal support and any conditions to the receipt or payment of spousal support. A postnuptial agreement can address issues such as property rights, inheritance rights, and death benefits. Most often, the intention of a postnuptial agreement is for spouses to define what assets and debts will be community property and what will be separate property. A more traditional postnuptial will make the majority, if not all, the assets and debts separate property, and limit or waive spousal support. The following are the issues that postnup can cover:
Without a prenup or postnup, or an agreement with your spouse as divorce, California family courts will apply community property laws to your matter. If you do not believe these rules should apply to your marriage, you need to be proactive and get a prenup or postnup.
The following are the differences between postnuptial and prenuptial agreements in California:
Couples who expect to marry sign a prenuptial agreement before marriage, which becomes effective after the marriage.
On the other hand, a married couple makes a postnuptial agreement, and there is not a fixed time limit.
Given a postnuptial agreement is during marriage, postnuptial agreements have a stricter standard. The parties are married and are in a fiduciary relationship with one another like business partners.
Although a prenuptial agreement has specific requirements governed by the Uniform Premarital Agreement Act (UPAA) (such as fairness, voluntary execution of the agreement, and full disclosure of the property), courts accept the prenuptial agreement as valid.
On the other hand, postnuptial agreements are subject to more scrutiny by California courts. This is mostly driven by the fact that the parties are married and are responsible to disclose all financial information to one another. Therefore, in enforcing a postnuptial agreement, you must demonstrate that you and your spouse made significant and complete financial disclosures to one another at the time you entered the agreement. The court will not validate the postnup if it fails to meet fairness and other legal requirements.
Similarly, if a postnuptial agreements “promotes dissolution,” waives or limits child or spousal support, impinges on the court’s exercise of jurisdiction to adjudicate child support or child custody, “alters legal relations” incident to marriage, or provides for “fault”-based penalties at marriage dissolution, it is considered invalid, according to California’s Family Law Practice Guide.
Many presume these two contracts are the same, yet signed at different times. However, they are entirely different under California law.
Prenuptial agreements have legal weight because California family law recognizes them, which creates a presumption of validity for premarital contracts unless proven otherwise. While in the case of postnuptial agreements, you have to prove to the court that the agreement is valid and the parties met their fiduciary obligations when entering the postnuptial agreement.
The following are grounds for contesting/challenging a postnuptial agreement in California:
Any fraudulent activity and lack of disclosure can invalidate the postnuptial agreement in the court.
For instance, if one spouse conceals or devalues assets, it can make the marital agreement unfair. A unfair deal could become the ground for challenging it in court.
You can expect to disclose the following assets and financial matters, including but not limited to, for making a contract:
If one spouse forces or coerces other spouses into signing a postnuptial agreement, it could later become invalid if challenged in family court. Hence, for an agreement to be valid, both spouses must sign it voluntarily and without threat. Mediating your postnuptial agreement strengthens the postnuptial’s validity. Additionally, having consulting attorneys review the postnuptial agreement with you adds a great deal to the postnuptial’s enforcement power.
The court may reject the postnuptial agreement, considering it unfair and unconscionable. Unconscionable means that terms or provisions mentioned in the agreement are so unfair that they go against good conscience.
Hence, a postnuptial agreement can become invalid if it favors one party more than the other even when both spouses signed it.
Yes, a postnuptial agreement is valid and legally binding. However, unlike a prenuptial agreement, if one party had an unfair advantage as a result of the postnuptial, the party must demonstrate that they fully and fairly disclosed all relevant facts.
In order to strengthen the enforceability of your postnuptial agreement:
No, you cannot get a prenuptial agreement with your spouse after you are married. Once spouses are married in California, they are no longer eligible to sign a prenuptial agreement. However, they can make a postnuptial agreement by following the proper legal guidelines.
Fortunately, if done correctly, the postnuptial agreement can serve the same function, and get the same results, as the prenuptial agreement.
Read Next: Prenups: What, Why, and When
Families First Mediation is a pioneer in the field of divorce mediation. Our entire divorce mediation team takes great pride in being active trainers, divorce mediators and teachers of mediation in the greater California area. If you are considering a collaborative divorce, legal seperation or looking for a san jose divorce lawyer we have services that may be beneficial to you. Take advantage of our vast expertise and background in the field of divorce mediation and our genuine desire to help with your divorce mediation services.
