After legal separation or divorce, it can be difficult for a spouse to enforce a postnuptial agreement in California. Here is how to do so.

To ensure a valid postnuptial agreement, first verify the contract complies with California requirements for a valid postnuptial agreement. Lastly, submit the agreement to the California family court to be approved and enforced by a judge.

What Are Postnuptial Agreements?

While the most well-known method of dividing marital property and assets is a prenuptial agreement, spouses can enter into another form of contract dividing assets in the event of a divorce or separation: a postnuptial agreement. While prenuptial agreements must be entered before marriage, postnuptial agreements offer a method for already-married spouses to enter into the contract splitting marital property and assets.

How Can Postnuptial Agreements Be Used?

Postnuptial agreements cover various issues on the division of marital property, responsibilities, and assets during a divorce or separation, including but not limited to:

  • Spousal Support
  • Child custody and child support
  • Pet ownership
  • Financial protection
  • Inheritance
  • Protection for a business
  • Property division and distribution decisions
  • Legal issues in the event of death

Under What Circumstances Should I Pursue a Postnuptial Agreement in California?

Postnuptial agreements can lighten the stressfulness of divorce by establishing the division of assets and ensuring protection in a marriage for the future. If you notice changes in your spouse’s behavior or financial situation, you may want to protect yourself in the event of a divorce or separation with a postnup. Additionally, if you are starting a new business while married, a postnuptial agreement would protect your business ownership rights. Child custody terms are also frequently included by spouses in postnuptial agreements.

Related: Postnuptial Agreements in California: Is It Right For You?

Are Postnuptial Agreements in California Valid?

California is a community property state, which means that spouses are considered a “legal community” upon entering a marriage, meaning each spouse receives half of the marital property and assets in a divorce or separation. However, California Family Code Section 1500 determines that a contract between two spouses, such as a postnuptial agreement, can alter the general property rights outlined in a marriage agreement.

Requirements for a Valid Postnuptial Agreement in California

For a judge to enforce a postnuptial agreement, specific legal requirements must be in place. The agreement must be:

  • Laid out in writing
  • Documentation of each spouses finances, property, and assets
  • Signed by both spouses
  • Notarized
  • Equitable for each spouse
  • Straightforward
  • Entered voluntarily

The postnuptial agreement will be invalid in California court and cannot be enforced if any of these requirements are not met. Therefore, spouses in California are highly encouraged to consult an experienced attorney who can write the postnuptial in clear, unambiguous language to withstand any disputes or litigation. An unclear postnuptial agreement may be considered invalid. However, a severability clause written by an experienced postnuptial attorney may allow for the rest of the agreement to remain valid even if a section has been deemed unenforceable in court.

After all requirements have been fulfilled, the postnuptial agreement must be filed with the family court and approved by a judge. Without the completion of these two final steps, the agreement is considered invalid by California law.

Related: How to Create a Postnuptial Agreement in California

FAQs About Postnuptial Agreements in California

How Long After Marriage Can I Enter a Postnuptial Agreement in California?

As long as the agreement meets California legal postnuptial agreement requirements, the courts consider the agreement valid regardless of how long you have been married.

What Is the Difference Between Prenuptial Agreements and Postnuptial Agreements?

Both agreements determine the division of assets, property, and responsibilities if a marriage is terminated. However, a prenuptial agreement is entered before the marriage begins and is considered immediately valid, while a postnuptial agreement is entered anytime after the marriage begins and requires compliance with California laws and approval by a family court judge. In addition, postnuptial agreements have the advantage of allowing spouses to change the division of assets and property as they grow throughout the marriage.

Related: Prenup vs Postnup in California: The Difference

Can Separate Property Be Outlined in a Postnuptial Agreement?

No. The California community property laws call for the separate division of separate property. It is also not considered in postnuptial agreements.

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