Postnuptial Agreement FAQ

Posted in uncategorized on August 31, 2021

There are many reasons why you and your spouse might consider creating a postnuptial agreement. This is a legally binding contract that allows you to make important decisions ahead of time in the event of a divorce, such as property division. If you have questions that are still unanswered after reading these postnuptial agreement FAQs, contact a family law attorney in Solana Beach to learn more.

Should I Choose a Prenuptial or Postnuptial Agreement?

The answer to this question is unique to each couple. Both legal documents accomplish the same goals in terms of the provisions that they can set for a divorce or the death of a spouse. The difference is that a postnuptial agreement is created and signed after marriage, not before.

It can be emotionally challenging for some couples to discuss a prenuptial agreement prior to marriage. For some, a prenup can be viewed as a lack of faith that the marriage will succeed. Choosing a postnuptial agreement instead could prevent these issues. However, a postnup might not be the right choice if you wish to settle legal issues before getting married.

How Do I Validate a Postnuptial Agreement?

It is critical to make sure that your postnuptial agreement is valid and legally enforceable. Otherwise, you may assume that your rights and assets are protected in the event of a divorce, only to have an unwelcome surprise should your marriage ever end. In California, a postnuptial agreement must meet all of the following requirements:

  • It must be made in writing. Oral agreements are not enforceable.
  • It must be entered into voluntarily by both parties.
  • It must contain the signatures of both parties given knowingly and freely, not under fraud or duress.
  • The language of the agreement must be fair and reasonable. It cannot be blatantly one-sided or contain unconscionable terms.
  • Both parties must give fair and full disclosures of their assets, debts and income at the time of the agreement.
  • The agreement must be notarized.

The best way to make sure that your postnuptial agreement is legally binding and enforceable is by working with an attorney to draft, finalize and sign the postnup. A Solana Beach postnuptial agreement attorney can give you peace of mind by allowing you to know for sure that your hard-earned income or assets are protected in the event of a divorce. Your attorney can work closely with you and your spouse to create a valid agreement that works for both of you.

What Is Typically Included in a Postnuptial Agreement?

Most postnuptial agreements focus on the division of property, debts and assets. Signing a document that controls how you will divide or share your assets upon divorce in advance, while you are still able to communicate and compromise with your spouse, can help prevent a complex and costly legal battle later. It can also be important to have a prenuptial or postnuptial agreement in California, as it is a community property state. This means that should your divorce case go to trial, the courts will divide your marital assets 50/50, regardless of what is fair.

A postnuptial agreement can also include provisions regarding spousal support (alimony), inheritance for a child of a former spouse, the financial responsibilities of each spouse during the marriage, and more. It cannot, however, contain terms that deal with child custody or support, encourage divorce, involve personal matters, or require illegal activity.

Are There Time Limits on Postnuptial Agreements?

No, there are no time limits on creating a postnuptial agreement in California. You and your spouse can create one no matter how long you have been married. Later postnuptial agreements are relatively common, as couples may better understand their assets, debts and how much each person has to lose in a divorce. You may also wish to consider a postnuptial agreement later in your marriage due to a change in circumstances, such as a spouse getting into debt or starting a new business.

If you wish to speak to an attorney about creating a postnuptial agreement, contact Ratzer|Dobis for a free consultation.