Key Considerations for Drafting Enforceable Postnuptial Agreements

What Are Postnuptial Agreements?

You may already know that a postnuptial agreement is a financial and legal document that marriage partners can prepare with the help of a California postnuptial agreement attorney.

It’s an agreement that allows the spouses to protect their personal property, be protected from one another’s debts, and/or spell out additional conditions and terms should the marriage end with divorce.

Many California couples have already prepared a postnuptial agreement. A postnuptial agreement is not for everyone, but you and your spouse should discuss the benefits and advantages of a postnuptial agreement with a Campbell postnuptial agreement attorney.

How Can You Know That Your Postnuptial Agreement is Enforceable?

In California, after a couple has married, if they did not prepare a prenuptial agreement, they may prepare a postnuptial agreement. In every way that matters, a postnuptial agreement accomplishes exactly the same things that a prenuptial agreement accomplishes.

The only real difference between a “prenup” and a “postnup” is that a postnuptial agreement is signed after rather than before the marriage ceremony.

To ensure that your postnuptial agreement will be honored and enforced by a California court, it’s important to understand what is and isn’t legal and enforceable in a postnuptial agreement.

What Are California’s Postnuptial Agreement Rules?

Postnuptial agreements resolve in advance potential disputes regarding a couple’s finances – disputes that often arise in divorce proceedings. A postnuptial agreement may be valid when a couple signs it after fully disclosing their debts, properties, and assets.

California requires both spouses to seek advice from independent legal counsel – or to waive the right to seek that advice – before they sign a postnuptial agreement. Your spouse’s attorney may not advise you about a postnuptial agreement, and your attorney may not advise your spouse.

A California postnuptial agreement attorney will help you prepare a fair, valid, and enforceable postnuptial agreement. That attorney will ensure that you understand the agreement’s provisions, terms, and possible consequences.

What Can a Postnuptial Agreement Accomplish?

For many couples, a separate property provision is the key part of a postnuptial or prenuptial agreement. These agreements allow marriage partners to keep specific assets and other items
separate from the joint and comingled marital assets and properties.

Most spouses who sign postnuptial agreements do so to keep separate at least some of the items and assets they owned before entering into the marriage. Postnuptial agreements will let you keep what is yours, so long as no term of the agreement fails to comply with California law.

What’s the Immediate Benefit of Preparing a Postnuptial Agreement?

Even when the spouses are happy and the marriage is successful, a postnuptial document may help the spouses to understand and define their financial standing and situation more precisely and clearly by listing their separate properties and setting forth the obligations of each spouse.

In the 21st century, postnuptial and prenuptial agreements are common. California imposes several reasonable requirements for postnuptial agreements, but this state’s divorce courts routinely and reliably honor legally valid postnuptial agreements.

What Questions May Not Be Addressed by a Postnuptial Agreement?

A postnuptial agreement may not address child custody, child support, or parental visitations after a divorce. These questions are resolved solely by the courts, which make the child’s best interests the highest priority in any divorce proceeding that involves a child.

Generally speaking, non-financial matters may not be addressed by a postnuptial agreement. A postnuptial agreement cannot, for example:

1. require a spouse to lose weight or to dress in a particular style
2. require a spouse to violate the law
3. be construed to promote divorce or to circumvent public policy

When May Postnuptial Agreements Be Contested in California?

Your Campbell postnuptial agreement attorney will prepare on your behalf a valid postnuptial agreement that meets all of the state’s legal requirements. In a divorce, a postnuptial agreement may be contested in a California court if it doesn’t meet the following requirements:

1. Each partner must have a lawyer present when the postnuptial agreement is signed, or either or both partners must waive the right to counsel, or the agreement may not be valid.
2. If either partner conceals assets, properties, or debts, the agreement may be invalid.
3. If either partner lacks the mental capacity to make informed decisions at the time the agreement is signed, it may be invalid.
4. If either partner signs the agreement under fraud, duress, or manipulation, it may not be valid.
5. If a postnuptial agreement is unconscionably one-sided – or over time becomes unconscionably one-sided – and favors only one spouse, it may be invalid.

A comprehensive postnuptial agreement may address trusts and wills, life insurance and death benefits, property rights, and other financial matters. A postnuptial agreement may not be right for every couple, but every couple should discuss their goals and finances on a regular basis.

What Else Should You Know About Postnuptial Agreements?

In the State of California, if you and your spouse prepare a postnuptial agreement, avoid preprinted or downloadable blank forms. The two of you will require a document that is specifically designed to deal with your unique financial concerns and needs.

Your postnuptial agreement should be prepared only by a California family law attorney who will ensure that the agreement meets all of California’s legal requirements and that, if necessary, a California divorce court will enforce the agreement.

Let Hepner & Pagan Prepare Your Postnuptial Agreement

Your questions and concerns about postnuptial agreements can be addressed by the family law team at Hepner & Pagan. We prepare postnuptial agreements and prenuptial agreements for our clients in Campbell, San Jose, and throughout Santa Clara County.

Even if you have one of these agreements, you’ll need an attorney’s help if you divorce and need to enforce that agreement. In a divorce proceeding, Hepner & Pagan will see to it that you are treated fairly and justly by the court and that you keep what is legally and rightfully yours.

Our team of attorneys is skilled at resolving the most contentious and complicated family law disputes, and we have established a reputation for outstanding client service. Schedule a consultation with Hepner & Pagan today by calling our law offices at 408-688-9153.