A marriage embarks a life-long partnership between two individuals. While divorce may seem like an unforeseeable future to some couples, sometimes the inevitable may happen. Discussing a prenuptial or postnuptial agreement may seem like couples are preparing for the worst. Although many couples feel disheartened about speaking on finances, marital agreements will likely save individuals from exhausting resources, time, expenses, and conflict if the possibility of divorce arises.
In short, individuals cannot get a prenup after marriage. Prenuptial agreements are made prior to entering into marriage. However, to accomplish a similar result from a prenuptial agreement, married couples may enter into what is called a postnuptial agreement after marriage.
What does a postnup do? What is a postnuptial agreement?
Marital agreements are governed under California’s Family Code § 1500. Under this code, marital agreements are legally binding contracts that prescribe property rights of spouses in event of a separation. Property rights concern issues such as determining how property will be separated, how assets are divided, alimonies, and more. In the event of a legal separation or a divorce, terms made in postnup agreements ensure that properties from marriage will be allocated to each entitled spouse accordingly. Without such agreements, it is up to state law to determine how the property is allocated. Very often the court’s decision may not best reflect the inclination of the parties. Hence, postnuptial agreements allow spouses to decide what happens to their property as agreed upon by both spouses.
Individuals may be more familiar with prenups however, the concept of the two marital agreements are very similar and that is to achieve financial benefits. Moreover, in recent years postnuptial agreements are rising in popularity since the 1970s in states with “no-fault” divorce laws, such as California. However, there are several differences. A key difference between the two marital agreements is, while prenups are signed before entering into marriage, postnuptial agreements are made after individuals have entered into marriage. Additionally, there is dissimilarity in the court’s treatment of each agreement’s validity. In California, the court will deem a prenup valid on the date both spouses have signed the agreement On the other hand, postnups will become validated once the couple brings the postnuptial agreement to the court for approval.
What are the pros and cons of a postnuptial agreement?
When marriages come to an end, martial agreements are guaranteed to help couples go through the process of separation to some extent. Postnups can help individuals benefit from a divorce as much as they allow it to. There are several advantages to signing a postnup.
First, postnuptial agreements will provide the general benefits as any other marital agreements such as financial security. Postnups will protect the interest of both spouses in the event of a divorce. Moreover, beyond protecting the spouses, the agreement will ensure to protect any assets relating to the marriage.
Second, postnuptial agreements may provide extra security to a marriage by adding onto an already existing prenup. This works well in cases when couples might be looking to redefine or clarify the terms provided in the prenuptial agreements. Usually, this occurs when an issue that needs to be addressed has not yet occurred in the beginning or prior to marriage.
Third, one of the most alluring features of a postnup is the requirement that it must be signed after entering into a marriage. The reason behind this is because when couples agree to a prenup, they are actually signing into several terms that are made in regards to the unforeseeable future. However, because postnups are drafted after marriage, it allows couples to carefully observe and determine each other’s routines as well as habits. This given time plays a big role for couples to define what the settlement will entail. For example, when the couple first got married, one spouse might be unaware of the other’s gambling habits. Over time, it gives the spouse an idea of how the other spouse manages their finances based on that habit. Hence, this observation can be included when drafting the postnup.
Fourth, postnuptial agreements give individuals a strong sense of control over how assets are allocated. Since everything is already agreed upon, individuals won’t have to worry about assets or properties falling into unintended parties. For instance, in most cases where an individual had children from a previous marriage, by signing a postnup they can protect the rights of their children by making sure certain assets will be assigned to them.
Lastly, postnups are flexible in a way that it does not have a certain deadline for when an agreement needs to be created. Hence, postnuptial agreements are better tailored to each circumstance by enabling couples to address issues that are apparent in the marriage.
However, it is important to keep in mind that postnuptial agreements also have certain disadvantages. This is why some couples may opt for a prenup. Although both postnup and prenup aim to assist individuals in a legal separation, their different results can help individuals determine which one to use. For instance, for married couples, it might be harder to differentiate between marital and nonmarital assets. Hence, in that case, postnups won’t be much help in determining pre-marital assets. Additionally, another disadvantage to postnup is courts are more strict towards postnuptial agreements than prenups. The reason behind this is because courts hold a higher fiduciary to married couples.
What can a postnup include?
Postnuptial agreements in California allow couples to freely enter into any transaction dealing with property between each other. A limiting factor to postnuptial agreements is that it views the relationship of individuals dealing in these transactions as fiduciary. This means individuals in prenuptial agreements are expected to have a relationship with a lot of resemblance to business partnerships where each partner owes the other a duty of good faith and fair dealing. Aside from the expected fiduciary duties, a postnuptial agreement can cover a wide range of settlements. Generally, aside from dealing with financial, property and asset matters, postnuptial agreements can also dictate issues regarding debt and any further legal decisions. Typically, postnups tend to not include provisions pertaining to matters of child support and child custody. Some examples of common provisions included in a postnup are:
- Property and asset distribution
- Separate property (pre-marital assets)
- Division of debt
- Retirement plans
- Legal consequences following a spouse’s death
Postnuptial agreements in California will be deemed valid once it is brought up to court for validation. Hence, there are certain procedures couples must follow;
- Parties to a postnuptial agreement must voluntarily enter and sign the agreement at the own will
- Prenuptial agreement must be produced in writing
- Validation of a prenuptial agreement requires notarized signatures from both spouses
- The language used to draft a prenuptial agreement must represent the parties’ terms in a transparent and comprehensible fashion.
- Postnuptial agreements should abide by the concept of fiduciary duties
Individuals seeking to validate postnuptial agreements are highly encouraged to reach out to a lawyer or attorney to safeguard themselves from the possibility of receiving invalidation.
Contact Pride Legal
If you or a loved one has been looking for a prenuptial or postnuptial agreement, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.
Q: Is there a deadline to when a postnuptial agreement can be made after a marriage?
A: There is no deadline to create postnuptial agreements. This means that regardless of how long a couple has been married, they may decide to create a postnup at any time. Instead, couples should focus on meticulously following the state’s requirements to ensure their postnup will get validated by the court of law.
Q: Are there any restrictions as to what I can include in my postnup?
A: This will depend on the state and jurisdiction that you are in. For instance, in California, courts will likely invalidate agreements including provisions relating to child support or custody rights. Postnups may not serve a waiver to any of those rights. Additionally, judges are inclined to alter terms regarding to spousal support, in the event that one spouse receives significantly greater income. Other than that, general restrictions pertaining to most postnup agreements will be provisions contradictory to the law, morals, or public order.