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What is a postnuptial agreement?

Engaged couples enter prenuptial agreements as a precaution to agree on the division of their property and debt if they ever divorce. But couples may have never gotten around to entering a prenuptial agreement while planning their wedding or circumstances may have changed since they married. Married couples, however, can enter a postnuptial agreement which can deal with property division and changed circumstances.           

Coverage

Postnuptial agreements differ than prenuptial agreements because a postnup is entered after the wedding. This may be years later.  Otherwise, these agreements are contracts that deal with similar issues such as property division and spousal support.

There are other reasons that spouses enter a postnuptial agreement. Long-married couples may execute these agreements when their prenuptial agreement is long out of date and does not address their current financial situation.

Couples may want to protect an inheritance which can be especially important in California and other community property states. These agreements can assure that a stay-at-home spouse is provided for if the couple divorces, business ownership is assigned or that a gift from parents is repaid.

A postnuptial agreement may be used to rebuild the couple’s relationship. Agreeing on divorce terms that are favorable to the other spouse, for example, may help a spouse show that they want to keep their relationship intact.

The agreement can last for the duration of the marriage or it may contain a sunset provisions with an expiration date. If a couple divorces and the agreement is no longer in effect, they will have to negotiate a divorce settlement. Or a court may divide assets and liabilities under California law.

Prenuptial agreements cannot address child support or child custody and visitation. Courts decide these issues based on the best interests of the child.

Requirements

The postnuptial agreement must be in writing and signed without coercion. Both spouses need to fully disclose their financial information. If spouses have a fiduciary relationship, California requires that the postnuptial agreement show their highest good faith and fair dealings.

Each spouse must have their own attorney when negotiating a postnuptial agreement to avoid conflicts of interest. A lawyer can also present options to a spouse that meets their needs and draft an agreement that is enforceable and meets California legal requirements.