California allows couples to sign a prenuptial and/or a postnuptial agreement to legally organize property, finances, and asset division in the event of a divorce. You can draft a postnuptial agreement whether you previously signed a prenuptial or not. If you already have a prenuptial agreement, you may want to draft a postnuptial because your situation has significantly changed since you got married.
There are many reasons for a couple to establish a postnuptial. Drafting this type of agreement does not mean that you are going to divorce, but some couples choose to do that when they are already expecting to do so. A postnuptial agreement can simplify the divorce process.
There is no time limit to creating a postnuptial agreement. What matters is that your contract satisfies all of California’s legal requirements.
How to Draft a Postnuptial Agreement
California allows a married couple to write their postnuptial agreement on their own. However, spouses should consider hiring an attorney to help them draft the contract due to the many requirements that a postnuptial agreement must fulfill for a court to approve it. While a prenuptial agreement does not require court approval, a postnuptial agreement does. Your lawyer’s thorough understanding of this type of document can make a positive difference in the accuracy of your contract and protect your interests.
Your postnuptial agreement must be in writing form, as an oral agreement is not sufficient or enforceable. Both spouses must disclose all assets, debts, and income in the agreement. You must voluntarily and fully consent to the contract, and the language used must be clear and leave no ambiguity. The terms of the agreement must be fair and reasonable, and the document has to be signed and notarized.
What Can You Include in a Postnuptial Agreement in California?
A postnuptial agreement can address the following matters:
- Property division
- Inheritance rights
- Debt payment
- Retirement benefits
- Spousal support
However, a postnuptial agreement cannot include any provisions about living or unborn children like custody or financial support. Under California law, these types of familial considerations need to be handled directly during a divorce and the court has the final say based on the child’s best interests.
Will a Court Uphold a Postnuptial Agreement if We Divorce?
If your postnuptial agreement is valid, the court can refer to it when establishing marital property division and alimony.
A judge may not enforce a postnuptial agreement if:
- Either spouse signed it under fraudulent circumstances or under duress
- Either spouse has a history of domestic violence
- The language used in the contract is not clear
- Either spouse concealed assets
If you are considering signing a postnuptial agreement or have begun drafting one with your spouse, you should consult a family law attorney to ensure that the contract meets all requirements in the state of California. This way, a court can use your agreement should you and your spouse ever get a divorce.
Call Cutter & Lax, Attorneys at Law, today at (818) 839-2533 or use our online form to schedule an appointment to draft a postnuptial agreement!