How to Create a Postnuptial Agreement in California

Postnuptial Agreements in California

Postnuptial agreements have many requirements in order to be valid in California. Here’s how to create a postnuptial agreement in California.

Postnuptial agreements are legal agreements that outline the division of assets and other finances in the event of a divorce or death. Without a postnuptial agreement in California, the asset/property acquired during the marriage will be divided evenly among the divorcing partners. Spouses in California may write their own postnuptial agreement, but they must ensure that certain requirements are met in order for the agreement to be valid and enforceable.

What are postnuptial agreements?

California is a community property state, which means that two married people are one legal “community” in terms of property and assets acquired during the marriage. This means that in the event of divorce, the assets and property (including debt) acquired during the marriage will generally be split evenly. Separate property, however, is generally not split evenly.

While this is the law, California Family Code Section 1500 allows for property division rights to be altered by marital agreements. A postnuptial agreement is a specific type of marital agreement made during the marriage outlining the status and division of property if the marriage is ended, such as in divorce or death.

Postnuptial agreements are similar to the more well-known prenuptial agreement (prenup), except that a prenup is entered into before the marriage occurs. Postnuptial agreements can be entered into at any point in the marriage, which suggests an advantage that postnuptial agreements have over prenups.

Postnuptial agreements allow couples to see how their properties and assets have grown and changed over time, whereas a prenuptial agreement may not include important assets because they did not exist at the time of writing. Postnuptial agreements are also advantageous in that some couples may be more reluctant to sign an agreement before the marriage occurs because they simply do not want to consider the possibility of the marriage ending before it has even begun. Furthermore, if divorce seems imminent, then couples may enter into a postnuptial agreement in order to streamline the divorce process before it begins.

Postnuptial agreements are intended to protect the property and assets of one or both of the spouses if they believe the existing laws, such as the equal division of community property and separate division of separate property, do not adequately protect/allocate the property in the event of a divorce. For example, one partner may develop severe debt due to a gambling addiction, and the other partner may want to ensure that they do not receive half of the debt in the case of divorce. Or, a partner may receive a large inheritance and subsequently want to ensure that they do not lose half the inheritance in a divorce. No matter the reason, if the marriage ends, the postnuptial agreement will be the guiding force in the court’s determination of property and asset division.

Can you write your own postnuptial agreement in California?

In California, married couples may indeed write their own postnuptial agreements. This can be done using a template document or from scratch. However, there are numerous requirements that must be fulfilled for the agreement to be considered valid; some requirements are easy to fulfill, while others are more subjective. If these requirements are not met, then the agreement is unenforceable:

The agreement must be in writing, as opposed to merely an oral agreement.
The document must be signed and notarized.
All assets and properties must be completely disclosed in the agreement.
Both parties must fully and voluntarily consent to the agreement. This means there must be no deception or coercion, and both parties must completely understand what they are agreeing to.
The agreement must be fair and reasonable.
The agreement must be completely unambiguous.

While it is easy to ensure that the document is written and notarized, it is more difficult to ensure that all property and assets are included, as well as that the agreement is adequately fair to both parties. For this reason, as well as the fact that it is difficult for non-legal professionals to adequately draft or complete a complex legal document, it is always recommended that both parties consult an attorney to ensure that their postnuptial agreement is valid and enforceable.

There are many nuances to this area of law. Marital agreements have been deemed invalid by courts in the past because partners did not use specific enough language, disclose absolutely all of their assets, or made other mistakes. Contact Her Lawyer to be put in touch with an expert family law attorney who will guide you through this process and ensure that your postnuptial agreement is valid and enforceable.

Once the postnuptial agreement has been created and signed, it must be filed at the local family court. The judge must then accept it as valid in order for it to be legally binding.

FAQs about how to create a postnuptial agreement in California

What is the difference between a prenuptial and postnuptial agreement?

Both of these agreements outline the division of assets if a marriage is ended, but a prenuptial agreement is entered into before the marriage begins while a postnuptial agreement is entered into at any point after the marriage begins. An advantage of postnuptial agreements is that they allow spouses to see how their assets grow and change (as well as how their partner’s actions and personality change) over the course of the marriage before the agreement is made.

Should a spouse seek an attorney’s advice on how to create a postnuptial agreement in California?

A legal professional is not required in order to create a postnuptial agreement. However, these documents have numerous requirements and can become exceedingly complex. Thus, it is always recommended that spouses consult lawyers while making postnuptial agreements. Contact Her Lawyer to be put in touch with an expert family law attorney if you are in need.

Should I create a postnuptial agreement?

Postnuptial agreements aren’t right for all couples. They are typically sought out by couples who have had significant changes in assets over the course of their marriage or simply are worried about their assets being adequately protected if their marriage ends. Spouses who predict divorce is imminent may also seek out postnuptial agreements to streamline the divorce process. If any of this applies to you, then you should consider a postnuptial agreement.

I want a postnuptial agreement, but my partner absolutely refuses. Can I get a postnuptial agreement anyways?

Postnuptial agreements are agreements, which means that both parties have to agree to one. Therefore, if your spouse says no, then a postnuptial agreement will not be valid. In this scenario, you may want to consider contacting a lawyer to understand your options.

I bought a car (or another piece of property) during my marriage, and I want to ensure that I keep it in the event of a divorce. Can a postnuptial agreement accomplish this?

Yes. As long as the final agreement is adequately fair to both parties, a postnuptial agreement can specify which assets belong to whom in the event of a divorce.

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