Prenuptial agreements have been a hot topic for decades, but less talked about it the concept of a postnuptial agreement. It used to be the case that prenuptial agreements – which are agreements entered into by spouses prior to marriage which decides how finances between the spouses should work out in the case of a divorce – were looked on with disdain in some circles, but people have increasingly seen them as a positive way for potential spouses to work together to avoid the expense, drama, and potential ugliness of a divorce trial. Now, postnuptial agreements, which are very similar to prenuptial agreements save for some key differences, are also becoming more common. Below, we discuss what exactly a postnuptial agreement is in California and when spouses might consider getting one.
What a Postnuptial Agreement Can Be Used For
The one obvious difference between a prenuptial and postnuptial agreement is that a prenuptial agreement is created prior to the marriage, whereas a postnuptial agreement is created once the parties are already married. The agreements are similar in that they will spell out which spouse owns what property in the marriage and provides a plan for what property each spouse should get in the event of a divorce. Without a prenuptial or postnuptial agreement, a California court would apply the concept of community property to the spouse’s property, meaning that all property earned by each spouse during the marriage should be split 50/50 even if one spouse did not work at all. With a postnuptial agreement, you and your spouse will work together to divide the property that fits both your needs.
A postnuptial agreement can also be used to determine how much, if any, spousal support should be paid following a divorce and for how long. Without an agreement, the spouses might have to argue the issue of spousal support in front of a judge who would impose a decision. Neither a prenuptial or postnuptial agreement can be used to determine child custody or child support, although the spouses can work together on resolving those issues as part of a divorce.
The Requirements of a Postnuptial Agreement
Not all states allow for the use of postnuptial agreements, but California Family Code Section 1500 specifically allows for their use. California law does require that each spouse in a postnuptial agreement have consulted their own attorney prior to entering into the agreement, thus spouses should avoid entering into a postnuptial agreement created by the spouses themselves or consulted on by only one spouse’s attorney.
In order for a postnuptial agreement to be effective in a divorce, it will have to be approved by a family law court judge, but so long as the agreement was validly executed in accordance with California law (meaning both spouses worked with their own lawyers) and fair under California law, a judge should approve the agreement.
How to Know if You Need a Postnuptial Agreement
The simple answer is that spouses do not “need” a postnuptial agreement, but they can be very useful in marriages where there is concern over finances going forward. A postnuptial agreement can strengthen a marriage by giving each spouse the security and stability of knowing where they will stand financially should a divorce come to pass. An agreement also removes the leverage of engaging in a lengthy and painful divorce process because issues of property and spousal support have already been worked out. By giving each spouse the opportunity to work together to prepare for the future, a postnuptial agreement can give assurances that neither spouse will be left unsupported or taken advantage of in the case of a marital breakdown.
Create a Postnuptial Agreement That Meets Your Needs
At The Law Office of Kelley C. Finan, our experienced family law attorneys can help you to negotiate, draft and finalize a postnuptial agreement that will meet your needs following a potential divorce and which will be valid under California law. For questions on creating a fair and cost-effective postnuptial agreement, schedule a consultation with one of our attorneys today.