A postnuptial agreement or “postnup” is a written, binding agreement created by spouses during their marriage that defines how their assets, debts, spousal support obligations, and similar financial issues will be treated in the event of a divorce or legal separation. The postnup is similar to a prenuptial agreement or “prenup,” with the significant exception that it is executed after marriage and not before marriage.

In California, postnups are generally enforceable if they are executed free from duress and if the agreement comports with the legal transaction requirements between spouses, such as full and fair disclosure of financial information and other fiduciary duty obligations. Postnups are less common in California than prenups, as practically it is more difficult to negotiate the financial aspects of a marriage while already married.

Why Should I Get a Postnuptial Agreement in California?

There are many reasons why spouses may choose to create a postnup in California.  Oftentimes, the parties had contemplated a prenup but were unable to complete the process prior to their nuptials.  Also, as things change during a marriage, it might be prudent for spouses to seek more certainty as to their financial futures in the event of a divorce.  Sometimes, a couple that has separated and then reconciled will want to enter a postnup to solidify their renewed commitment to one another and have an agreed-upon plan in the event their renewed commitment should fail.

A postnup may include a wide range of provisions, but some common issues that might be addressed in a California postnup are:

DIVISION OF PROPERTY:

How the couple’s assets will be characterized and divided in the event of a divorce, including property acquired before and during the marriage.

SPOUSAL SUPPORT:

Spousal support, including the amount and duration of support that one spouse may be required to pay to the other, lump-sum spousal support, and in-kind spousal support.

DEBT:

How debt incurred during the marriage will be characterized and divided.

BUSINESS INTERESTS:

How community or separate property business interests will be treated in the event of a divorce, including any equitable apportionment considerations.

To create a postnup in California, both spouses must agree on the written provisions and execute the document free from duress and coercion.  Given the existence of fiduciary duties between the spouses, the financial disclosures must be comprehensive.  

Are Postnuptial Agreements Always Enforceable?

There are no absolutes when entering a postnup.  If one spouse were to prove that they signed the agreement under duress or without full knowledge of the other spouse’s assets, the court could render the postnup partially or totally unenforceable. Additionally, if the terms of the postnup were unconscionable as to one spouse or were violative of California law, the court could render the agreement partially or totally unenforceable. Therefore, it is important to work with an experienced attorney when creating a postnup to ensure that it is legally valid and enforceable.

Each party to a postnup should be represented by independent counsel to ensure that they have a full understanding of their rights and responsibilities in the context of the California Family Code and other applicable legal authorities.  Legal representation is also critical to understanding and complying with fiduciary duties as well as hedging against a later contention of duress or coercion.  

How Do I Get a Postnuptial Agreement?

A postnup can be a valuable tool for couples who want to protect their assets and clarify their rights and responsibilities in the event of a divorce or legal separation. However, creating a postnup requires careful consideration and legal expertise. At Antonyan Miranda, we understand the importance of working closely with our clients to create a postnup that is fair and legally enforceable. We have a team of highly skilled Certified Family Law Specialists to help you in your postnup. Call us at 619-696-1100 to speak with one of our Concierge attorneys, or visit us at www.expertdivorcelaw.com for more information.