Most engaged and married couples often have a cautious feeling when it comes to discussing postnuptial agreements. While it is true that these agreements have had a negative perception as taking the love and romance out of a marriage, they serve a significant role. For one, they enable you to protect your property while in marriage. Forming postnuptial agreements is not an easy task because there is a proper way to create them. You would most likely need the help of an attorney in order to have a valid and useful agreement.
At Los Angeles Divorce Lawyer, we have expert attorneys who can help you create postnuptial agreements as well as help you understand what the law says about them. We serve clients in Los Angeles, who need help understanding all matters concerning California family laws. This article focuses on everything you need to know about postnuptial agreements.
What is a Postnuptial Agreement?
This is a voluntarily signed marriage contract between married couples that is established after the marriage takes place. It’s the exact equivalent of a prenup agreement that is established before a wedding. It plays a significant role in helping to resolve problems in marriage by getting rid of what may cause a disagreement over assets, inheritances, or finances. It also helps those couples that intended to create a prenuptial agreement but didn’t have the time to address legal and financial issues in case of divorce. The agreement will address issues like what will become of the investments, family house, and other marital property.
Most people tend to think that postnuptial agreements are invalid in some way or they are not enforceable like prenups. This is not the case. Nuptial agreements are not about when they were established. Rather, it’s about the content, the scrutinization of procedural integrity, and the signature that validates or invalidates the agreement under the law.
If you want to get a postnup, you have to seek legal counsel from an expert family law attorney. He or she will help you come up with a legally enforceable agreement. A spouse may want to get into this kind of agreement to curb the other spouse's uncontrollable spending or other careless behavior. Others may be already thinking of divorce or may have a fear of their partners wanting to divorce after a short time into the marriage. However, couples with healthy marriages may also create postnups to determine how the division of property and other issues would be handled in case of the demise of one spouse or divorce.
What Constitutes a Valid Postnup Agreement?
Just like prenups, postnuptial agreements have a specific legal procedure and certain requirements that you must follow and include to make them authentic and enforceable. Here are the basic requirements they should have:
- It should be written- Oral agreements are not considered as valid
- Validly executed- the agreement has to conform to the laws of California. Additionally, it has to be signed by both spouses, and the signatures have to be notarized.
- Voluntary- The agreement should be voluntarily signed by both parties. No one partner should force the other into signing the agreement. If there is any proof that one party threatened or coerced the other into signing, the agreement will be null and void.
- Full disclosure- Both parties entering into a potential agreement must have informed one another of what is going to be included in the agreement. Additionally, they must receive legal counsel to make them understand how the agreement would affect them. The partners should also have disclosed to one another the income, liabilities, and assets they each have. This is important because the purpose of this agreement is to point out how this property will be handled in the event of a divorce. If any of the parties provides inaccurate or incomplete information, the agreement won't be considered as valid.
- Fair- The agreement should not be one-sided; neither should it be extremely unjust towards one spouse. Depending on the circumstances and facts, an unfair agreement is not valid.
- There has to be a waiting period of 7 days between receiving the agreement and signing it
- In many cases, each spouse has to have his or her attorney to represent them separately unless they meet very strict conditions so that they can both be represented by one attorney.
- You must have an attorney to help you ratify the agreement. Failure to have one will render the agreement unenforceable
Note that other legal requirements may apply to postnuptial agreements and not prenups.
What Does a Postnuptial Agreement Include?
Generally, what to and not to include in a postnuptial is guided by the same state laws that guide what to and not to be included in a prenup. The only main difference is that prenups are established before marriage, while postnuptial agreements are established after the parties are already legally married. The following are the commonly included provisions:
- How the spouses will divide assets if the marriage is dissolved
- Whether or not either of the spouses will provide spousal support after the divorce, how much the spousal support will be, and for long the support payments would continue
- How the spouses will divide marital debts, if any, in case of a divorce. Marital debts may include credit card debts, mortgage loans, etc
- How property will be handled if one of the spouses dies while still in the marriage. The decision here depends on other provisions, for example, whether the couple was in the process of divorcing when the death occurred
- Division of community property in case of the divorce of the couples. This may depend on the rights of inheritance
- How the family home equity shares will be divided between the spouses
- Who gets to keep family pets
- Which spouse benefits from the life insurance policy
The following cannot be legally included in postnuptial agreements in California:
- Any provision that contradicts with California public policy or the laws of the state
- Any restriction placed on child custody, support or visitation rights
- An unjust way of deciding which spouse gets what property after the divorce, or which spouse pays spousal support
- A provision to penalize a spouse who cheats in the marriage or for any other reason. This will be invalid because when it comes to divorce, California is a no-fault state
Types of Postnuptial Agreements
California postnuptial agreements are categorized into 3 different, but closely related types. They include:
A process by which the spouses agree to relinquish spousal rights in case of the death of one party - Simply put, postnuptial agreements can provide a way in which a couple’s property will be divided if either of spouses dies. An agreement of this kind is generally designed to surpass California law or a will and allow spouses given property rights. When you sign this kind of agreement, you agree to relinquish any rights you would have had to inherit assets.
A way of dividing property and paying spousal support - This is the most known prenuptial agreement type. It points out how the liabilities and assets of spouses will be divided if they divorce. The agreement also addresses spousal support or alimony. It includes provisions that state that one partner relinquishes the right to spousal support or alimony and in exchange, he or she gets certain marital assets. Property covered in this form of the agreement includes marital property and property that each party came with into the marital union. Marital property is property the spouses acquired while already married.
A guide that can be used later as a spousal separation agreement -This third type is more of a separation agreement. The agreement spells out the manner in which child custody and support, as well as spousal support, will be handled if the parties divorce. It includes how the spouses' liabilities and assets would be divided. This form of agreement can later be included in a divorce verdict, and it may save expenses and time in divorce cases.
What to Keep in Mind Before You Sign a Postnuptial Agreement
We have situations where getting postnuptial may not be a good idea. We advise that before getting one, you should first hire your attorney (separate from your spouse's) whom you can consult on the matter. You and your attorney should then go through the agreement thoroughly before you sign. In almost all cases, if you use the same attorney as your spouse, courts won't validate the agreement because they consider it a conflict of interest. This mainly happens if the attorney that is supposed to represent you both just drafted the postnuptial agreement and passed it over to you so you can sign.
Keep in mind that getting postnuptial can be quite difficult, especially if the process of legal separation or divorce has already started. In most cases, the agreement will not hold water regardless of the other spouse having signed it. If you don't get this agreement, the only left option is to settle for some kind of agreement between you and your spouse.
Also, ensure the agreement serves your best interest before you sign it. For instance, consider how much community property or alimony you will get if you sign. We at Los Angeles Divorce Lawyer may be able to help you in finding that out.
In other cases, a well-off spouse may want to establish a postnuptial to evade property loss or alimony after divorce. In this case, a judge can disapprove the agreement if he/she discovers the true intentions. However, you cannot be sure of the intentions of your spouse or if the judge will invalidate the agreement. This, you have to be more careful because after you sign, changing the terms of the agreement may be impossible.
Note that it is possible for you to try negotiating on the agreement terms before you can sign it. With the help of an experienced family law attorney, you can successfully negotiate for the terms to be revised in order to meet your best interests.
Make sure you take the time to read through the agreement and ask your attorney to explain what legal clauses or terms you don't understand mean. If you do not read through, you may end up signing without knowing what it entails. Always know that while the postnuptial agreement could be rendered null and void due to several factors, you cannot delegitimize the agreement just because you did not have time to read through it.
Why a Couple May Want to Establish a Postnuptial Agreement
Spouses may choose to create a postnup due to several reasons. The following are the most known factors that can lead to a couple creating these agreements:
- If the couple wants to resolve problems in their marriage
- If the spouses want to eliminate any disagreement regarding assets
- If one of the spouses experiences a change in career
- The change in financial status for one of the spouse
- If one spouse receives a huge inheritance
The aim of the postnuptial agreement is to minimize conflict and promote peace and harmony in a marriage. Couples create these agreements not because they have an intention to divorce thereafter but because they are trying to save their marriage. Though, in other cases, couples would create the agreement because they want to get divorced but want to agree on the matters of the divorce before time.
Advantages of Having a Postnup Agreement
As mentioned before, it is important to hire a skilled family law attorney if you are contemplating creating a postnuptial agreement. Attorneys at Los Angeles Divorce Lawyer are conversant with the process of creating one and will ensure that you follow the proper necessary steps.
One benefit of a postnuptial agreement is that it removes uncertainty in several instances. Additionally, you can use this agreement if you predict the possibility of you and your spouse divorcing in the near future. The agreement also serves as a means of ensuring that property division is done correctly and support matters settled. By establishing a postnuptial agreement, a couple can save a lot of time and money by not going to the courtroom.
Are Postnuptial and Prenuptial Agreements Equal?
As we mentioned before, a postnuptial contract is just as authentic as a prenup. It also can include the same provisions as a prenup. However, the burden of proof varies depending on which nuptial agreement you have established. When it comes to a prenup, it is always assumed that it's valid unless proven otherwise. With a postnuptial agreement, it is the exact opposite; it is invalid unless proven otherwise.
There are several practical and legal reasons explaining why there is a shift in the burden of proof for the two nuptials. One of them is separate assets that had not been classified as separate before the wedding are hard to prove that they are actually separate assets and not community. Additionally, the chances of one party being forced or threatened into signing a nuptial agreement are higher with postnuptial agreements as compared to prenups.
However, this does not imply that postnuptial agreements that are legally approved are less valid compared to prenuptial agreements. Usually, postnups are thoroughly scrutinized in case the spouses are divorcing, but an experienced family law attorney may use every possible strategy to make sure they're enforceable.
When to Avoid a Postnup
Just like any other form of a legal contract, you should agree to sign a postnup only after you have carefully considered all the provisions included and their implications. The following are reasons as to why you may want to reconsider establishing a postnup.
If there's a huge income difference between the spouses- in case of a huge income disparity between you and your spouse, your partner, if he or she earns a lower income, may feel oppressed by the agreement. The provisions of the agreement may not adequately cover his or her needs if you divorce or separate. This does not mean spouses with unequal levels of income shouldn’t enter into a postnuptial contract. However, they have to review the postnuptial agreement carefully before they sign it.
If your spouse did not give you enough time to read through and evaluate the agreement terms-Since it is a legal contract, it is crucial that both you and your spouse have ample time to read and understand how your rights are protected or limited by the agreement. Claiming you didn't understand whatever you were signing will not make the postnuptial agreement unenforceable. Thus, take the time to read through the agreement and seek clarification where necessary.
Since every married couple's financial situation and lifestyles are different, there's no definite answer when determining whether you should enter into a postnup agreement or not. The decision you make will be based on your financial circumstances.
Finding an Experienced Divorce Attorney Specializing in Postnuptial Agreements Near Me
At Los Angeles Divorce Lawyer, we have attorneys with high-level expertise in family law that handle postnuptial and prenuptial agreements as well as other issues regarding family law. Our attorneys are conversant with California family law, understanding what the law says about postnuptial agreements, and the legal procedures needed to create one. If you want to establish a valid and enforceable postnuptial agreement, feel free to contact our Los Angeles Divorce Attorney at 310-695-5212. We have helped many clients in Los Angeles, CA, and are still helping many more to draft postnuptial agreements or help them to defend or challenge the agreements during divorce cases.