Postnuptial agreements are not bad words. In fact, our experience is that couples can become closer and nurture their marriages as a result of a postnuptial agreement. There have been many different reasons given by clients for wanting such an agreement and it has absolutely helped many of these real San Diego families strengthen their relationships. So you are not a bad person for bringing up the idea to your spouse and you should come talk to us about how such an agreement may help you.
A postnuptial agreement is simply a way for you and your spouse to contemplate what would happen to your marital assets should your marriage end in divorce. Some people do this before their marriage through a prenuptial agreement but it’s not too late if you already have walked down the aisle, it doesn’t mean it’s too late. You can still draw up a postnuptial agreement at any time after the marriage takes place.
The Postnuptial Agreement
Postnuptial agreements are legally-enforceable contracts signed by couples any time after the marriage. A postnuptial agreement is essentially the same as a prenuptial agreement, only it comes into existence after the marriage instead of beforehand. Like a prenup, postnuptial agreements outline how a couple’s income and assets are to be labelled and divied up in the event of legal separation or divorce. In a postnuptial agreement, you can spell out how all separate and community property acquired before and during the marriage is to be divided. You can also set forth plans for your children. And it enables you to make these decisions at a time that you are level headed and thinking as opposed to reacting.
Why Have a Postnup?
There are several reasons to have a postnup and none of these are sinister. To give an example, perhaps you made a wise business investment or decision that results in tremendous wealth. You can set out a mutually agreeable settlement in the event of divorce that can take the pressure off of your marriage. In turn, you can live in the present more happily. Or perhaps you’re in your second marriage and want to ensure children from a prior marriage receive certain assets like the Hawaiin vacation home you acquired when these kids were little. Perhaps there is an affair and the wealthier spouse expresses a desire to work on the marriage but only if the cheating spouse signs a postnup. Or if one spouse is awful with money and can’t control spending habits, the other spouse may be determined to execute a postnuptial agreement. The possibilities for a postnup are endless.
General Postnup Criteria
Generally, postnup agreements must meet the following criteria to be legally-binding:
- They must be written agreements (oral agreements are not enforceable) signed by both spouses and notarized.
- The agreement must be signed voluntarily and if one spouse was threatened, coerced, deceived or physically forced, the agreement will be deemed unenforceable.
- The postnuptial agreement must be fair. It cannot leave a spouse penniless.
- Each spouse must fully disclose their financial information about their income, assets, debts and property.
You can achieve a legally binding postnuptial agreement by engaging our services and coming to our lawyer mediator to figure out all aspects of your agreement. We encourage our clients who negotiate the terms of their own postnuptial agreements in mediation sessions with our experts to also secure legal representation to review the draft of the agreement and represent your interests in such a review. You do not want to sign an agreement without having your own legal representation. You do not want your spouse’s attorney to represent you because doing so would be a conflict of interest. Besides, California courts are not likely to enforce a postnuptial agreement where one of the spouses didn’t have their own family law attorney.
What a Postnuptial Agreement Can’t Do
California does not enforce postnuptial agreements that waive or set limits on child support. You also cannot use these agreements to determine child custody. A postnup that tries to set terms on child custody and/or support may be rendered unenforceable by the family court.
If securing a postnup would give you the peace of mind to live more securely and happily in your marriage, we can help consult and draft this agreement. Simply contact us to schedule a meeting. Simply call our office at 858-255-1321 or email email@example.com.