What You Need to Know About Prenup vs Postnup in California
Prenuptial and postnuptial agreements protect spouses’ separate properties in the case of a divorce. Here is everything you need to know about prenup vs postnup in California.
Prenuptial agreements take place prior to a couple getting married. On the other hand, postnuptial agreements take place after a couple is already married. Despite this major difference, both types of agreements work to protect assets and couples must meet certain requirements for them to be enforced.
Related: How to Protect Your Assets in a California Divorce
Prenuptial Agreements in California
When is it a good idea to obtain a prenuptial agreement?
Prenuptial agreements, or premarital agreements, are created prior to a couple being married. They are contracts that ensure spouses will maintain financial and property rights if a divorce occurs in the future. These sorts of agreements are typically enacted by spouses that have been married before or by spouses that have significant assets they desire to protect in the case that they end their marriage in the future. It is important to note, however, that the sunset clause can dictate some prenuptial agreements, which essentially means that there can be an expiration date for some agreements.
What is required of a prenuptial agreement in California?
Prenups in the State of California follow the Uniform Premarital Agreement Act (UPAA). The law expresses that prenuptial agreements written and signed by both parties become automatically effective upon the parties getting married. A prenuptial agreement can deal with current and future matters that relate to marriage, including property rights. However, the agreement cannot negatively influence the rights of a child, including child support and the court’s ability to control child custody and rules for visitation if the marriage terminates.
Prenuptial agreements must follow the principles of general contract law. Specifically, in order to enforce the agreement, there must be valid consent from both parties. Validity means that an individual must not consent due to force, fraud, or a mistake being made. Additionally, it is required that individuals have the mental capacity to consent to begin with.
In order to enforce prenuptial agreements against a spouse, the UPAA maintains a few requirements. These requirements include the spouse having been fully knowledgeable about the other spouse’s property and finances before having signed the prenuptial agreement. Further, the spouse must have had a minimum of 7 days to look over the prenuptial agreement before signing it. This is necessary to ensure an attorney has enough time to go over the agreement.
When signing the agreement, the spouses must be represented by different attorneys. That being said, a spouse does not have to be represented by a different attorney if, in writing, they received complete information regarding the rules of the agreement. This must incorporate any obligations or rights that the agreement would nullify. Additionally, the spouse would have had to prove that they received this information by signing a separate document to waive the right to an attorney and that they recognize the individual who provided the information. However, if the spouse did not have a separate attorney, provisions dealing with alimony cannot be enforced.
Related: How to Get a Prenup in California: Prenuptial Agreements
Postnuptial Agreements in California
When is it a good idea to obtain a postnuptial agreement?
Postnuptial agreements are typically created prior to a divorce or separation. They primarily serve to create an organized means of separating – drafting a potential division of assets, separate property, child custody, etc. This simplifies the process of divorce by accomplishing a large part of what the process consists of ahead of time, thus, postnuptial agreements are useful in saving time.
A partner’s assets may drastically differ towards the end of marriage compared to the beginning. A postnuptial agreement can be useful to account for such changes. One example of this can be seen with large inheritances. California law usually considers inheritances as separate property as opposed to community property, yet different circumstances can blur this rule. In long-term marriages or if an inheritance has been combined within a joint marital account, it can be more difficult to ensure the inheritance is separate property. In such cases, postnuptial agreements can assist in keeping separate property separate.
Related: How to Divide Property in a California Divorce
Postnuptial agreements can also serve as a protective factor. In cases where domestic violence or abusive behavior becomes a part of a marriage, a postnuptial agreement can be instrumental in ensuring assets are protected. Thus, regardless of whether or not spouses do get divorced, having a postnuptial agreement ensures a level of safety if worst comes to worst.
What is required to obtain a postnuptial agreement in California?
Postnuptial agreements in the State of California require particular steps. The first 3 of these include the agreement being written or typed, signed on behalf of both parties, and correctly notarized. These requirements are without exception mandatory, as the agreement will not be enforceable without them. The rest of the requirements deal with the agreement being equitable.
The fairness of the postnuptial agreement is judged on behalf of a few qualities. For one, a judge will not allow the agreement to take place if it only works for the benefit of one spouse. Therefore, neither partner can be demanded to sign the agreement. Specifically, a spouse cannot be forced to write their signature through threat, coercion, violence, or deception – the postnuptial agreement must only be signed voluntarily. Additionally, the agreement must not be “unconscionable”, therefore, another requirement is that it does not favor one spouse by leaving the other spouse with less than they had prior to the marriage. Finally, assets must be fully disclosed. This kind of honest communication is mandatory – postnuptial agreements are invalidated if assets, debts, property, or income are concealed or kept hidden.
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