Are Postnuptial Agreements Valid in California?

Postnuptial agreements are on the rise in marriages across the country. This type of contract differs from prenuptial agreements in that it is executed after a marriage or civil union takes place between two individuals. It is used to define how a couple’s financial affairs and assets will be divided in the event of separation or divorce. Reasons for signing a postnuptial agreement vary. Some reasons could be lack of time to draft and sign a prenuptial agreement before the wedding took place, infidelity, and/or changes in financial status. If you have prepared a postnuptial agreement for your spouse to sign or if your spouse’s attorney has drafted an agreement for you to sign, it is important that you retain a competent family law attorney to review the document before you put your signature on it. It is imperative that you and your spouse retain separate attorneys, as being advised by one another’s attorney is a conflict of interest. A postnuptial agreement is more likely to be upheld by a California court if both spouses are represented by attorneys. The Ventura divorce attorneys at the Law Offices of Bamieh and De Smeth can help guide you through this process.

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Benefits of Postnuptial Agreements

Many couples claim that executing and signing postnuptial agreements in a way saved their marriages. Although prenuptial agreements are ideal in terms of enforceability in the court of law, there are still several benefits to signing a postnuptial agreement. One benefit is that drafting a postnuptial agreement gives couples a chance to address challenges in their financial situations such as debt. It can also give couples the opportunity to make plans in the event that one spouse dies or becomes disabled. For some, it is uncomfortable to talk about prenuptial agreements before the marriage takes place, and after years of knowing one another, the subject can be discussed with ease and comfortability.

Criteria for a Valid Postnuptial Agreement in CA

In the state of California, prenuptial agreements are assumed to be valid while postnuptial agreements are more heavily scrutinized. One argument against postnuptial agreements is the public policy reason that they make it easier for couples to divorce and give up on a marriage that is on the rocks. Another argument is that the spouse with less pre-marital assets is disadvantaged by such an agreement. Nevertheless, in some cases, a judge might find that a postnuptial agreement is valid due to new information which is discovered after a marriage takes place. This could be in the form of one spouse relapsing into some sort of addiction. A judge might also find a postnuptial agreement to be valid due a significant change in financial circumstances whether it be success or hardships.

A postnuptial agreement must meet the following criteria in order to be considered valid:

  • It must be in writing
  • Both parties must sign the contract and it must be notarized
  • The act of signing the agreement must be voluntary; It must not be under force, coercion, duress and/or signed without the required mental capacity
  • The agreement must be fair; It cannot be unconscionable or extremely one-sided
  • There must be a full and accurate disclosure of all income, debts, assets, and property.

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It is important to know what constitutes an invalid postnuptial agreement. Postnuptial agreements are unable to dictate or control child support and/or child custody. They also cannot be used as punishment for a spouse’s infidelity.

Issues with California Property Division

In 2015, the American Academy of Matrimonial Lawyers surveyed Family Law attorneys throughout the United States about common issues in postnuptial agreements. The top three topics covered in the agreements drafted by these lawyers were property division (90%), alimony/spousal maintenance (73%), and retirement accounts (45%). Before a marriage takes place, there is virtually no way to predict what kind of challenges will arise throughout the years. To assume that a couple’s financial situation will be the same or better than the day they got married as it will be in twenty-five years is just that – an assumption. Postnuptial agreements give couples an opportunity to define what is marital property and what is separate property in the event of a divorce. Furthermore, this type of agreement can more clearly define an amount of cash that each spouse is entitled to even though it was deposited in a joint account. It can also confirm that a large inheritance received by one spouse during the marriage is not considered marital property, in the event that the funds were held in the names of both spouses.

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Ventura, California Divorce Lawyers

If you are considering a postnuptial agreement, contact our law offices today. If your spouse’s attorney has prepared an agreement for you to sign, it is important that to consult with an attorney so that you do not unknowingly give up rights or interest in property. It is always better to play it safe and plan ahead. It’s also never too late to secure your future. Call our offices to speak to a Ventura family law attorney today at (805) 643-5555.