Most people have heard of a prenuptial agreement before—the pre-marriage contract that (once upon a time) used to spell out “certain doom” for the soon-to-be-wed couples who entered into them. But for more than a few people out there, the concept of a postnuptial agreement is rather new.

Similar to its pre-marriage counterpart, postnuptial agreements are used to outline certain property ownership rights, and delegate important responsibilities between married partners. However, unlike a prenup, postnuptials aren’t created before spouses get married… instead, these are drafted while they’re married. 

But why would you ever want one of those? you might be wondering. And how does that even work?

We’re glad you asked. 

Here’s what you need to know about getting a postnuptial agreement in California, and what the Maples Family Law team can do to help you navigate this important marital contract.   

 

What is a Postnuptial Agreement?

A postnuptial agreement is a type of contract that is initiated by a married couple, while they are married, in order to address certain areas of that marriage. It can be drafted to apply retroactively (back to the original marriage date), or to outline how things will operate, moving forward. 

When valid, a postnuptial agreement essentially subverts the normal rules and protections of things like community property and marital finances, and inserts the couple’s individual preferences, instead.

Most of the time, California couples use this agreement to manipulate finances, and delegate property ownership (for example, to assign debt, or keep property separate). However, it’s not uncommon for the modern postnuptial agreement to go beyond the nitty gritty of those legalities, and address more personal areas of a couple’s day-to-day life, such as pet custody.

If you’re sitting there thinking that this all sounds an awful lot like a prenup, you wouldn’t be wrong. However, while the two agreements operate in nearly identical ways, there is one important difference: 

Prenups are drafted before a couple gets hitched; post-nuptials, after. 

 

If You’re Already Married, Why Would You Need a Postnuptial Agreement?

The short answer is: you might not… but that doesn’t mean you shouldn’t want one.

In days of yore, prenuptial agreements left a bad taste in peoples’ mouths. Many folks (erroneously) assumed they were only useful to the very wealthy, and that the presence of one doomed marriage to failure, right from the start.

These days, however, couples are getting smarter. 

Rather than seeing pre and post-marital contracts as a precursor to sudden marital death, these savvy couples are viewing them more like a good insurance policy. They’ve learned from the divorces of parents and loved ones, and want to mitigate the destruction of a potential divorce by agreeing on many of its sticking points, now.

Here’s a closer look at some of the things a postnuptial agreement can and can’t include, and why you should consider this relatively inexpensive divorce “insurance.”  

 

What a Postnuptial Can Include

One of the most expensive and time-consuming aspects of a divorce is property division. Hence, this is often one of the areas couples tend to focus on the most, when drafting a pre or postnuptial agreement.

To this end, a California postnuptial agreement can be used to: 

• Dictate separate and marital property rights; 
• Address premarital property and debts;
• Divide marital debt; 
• Outline retirement and 401(k) benefits; 
• Split savings and investments;
• Govern health insurance; 
• Determine inheritance rights and death benefits; 
• Resolve the question of alimony; and even, 
• Protect the financial interests of children from a previous relationship.

These contracts can also address the current affairs of the couple’s life, including things like pet custody, chore list responsibilities, and how they will handle things like job transfers and moving out state. Some couples will even try to dictate how much time each has to spend with the in-laws. 

As a general rule, however, the more absurd the request, the less likely it is to hold up under judicial scrutiny, since California courts don’t like getting involved in a marriage’s personal affairs. 

 

What a Postnuptial Cannot Include 

While there’s a lot a postnuptial agreement can do, these documents are not all-inclusive, and there are some elements you’ll ultimately have to leave up to the fate of a future divorce court. 

For example, in California neither pre or postnuptial agreements can include: 

• Clauses that cover, restrict, limit, or prohibit issues relating to a living or unborn child (such as abortion requirements, and/or the number of children a couple should have). 
• Clauses that attempt to restrict or require future child support obligations. 
• Clauses that try to delineate future custody rights and/or visitation schedules for the couple’s children.   

When it comes to custody (including all matters involving child support and visitation), California courts have exclusive rights to determine what is in the best interest of a child. 

Couples who ignore these rules (and try to include custody, anyway), run the risk of a future court invalidating their entire contract. So it’s best to simply leave those issues alone.

 

Elements of Valid Postnuptial Agreement

A car insurance policy that cuts corners isn’t worth much in an accident. Similarly, a postnuptial agreement without the right elements won’t be able to save you from the time and expense of a future divorce. 

In order to be legally binding, a California postnuptial agreement must be: 

1. In writing; 
2. Voluntarily signed by both spouses; and,
3. Notarized.

The contract also must be fair to both parties, and must represent a full accounting of all of the couple’s shared and separate income, assets, debt, and property. 

 

Postnuptial Mistakes to Avoid

While drafting your postnuptial agreement, be sure to keep an eye out for these potential pitfalls; if you don’t they could end up invalidating the whole party. 

1. Undisclosed property. Trying to hide something from the court is never a good idea. First off, because it’s almost impossible to do (hello, financial sleuths). And secondly, it could potentially result in some financial and legal retaliation from the court for whoever dunit. 
2. Fairness. The court will not look kindly on an agreement that attempts to leave one half of your duo completely penniless. Don’t be stingy. Make it fair to both sides, otherwise you’ll end up in court, anyway. 
3. Timing and Duress. Any kind of signing deadline or ultimatum is a sure-fire way to get your agreement invalidated. These are serious financial considerations. Hence, if you rush or press your partner to sign, then the court may question whether the agreement was actually fair.
4. Representation. It’ll be much easier to argue that your contract is fair, if each side has their own attorney, while drafting your contract. While not as cheap as a D.I.Y. agreement, proper representation now will be significantly less expensive than divorce court, later on.  

 Cost of a Postnuptial Agreement

In California, postnuptial agreements don’t get filed with the court right away. This is simply a contract between you and your spouse, which can be produced to help mitigate and settle divorce issues, if the need ever arises. As a result, there’s no filing fee. The only cost you will have will be for your attorney.

Most family law attorneys bill at an hourly rate—regardless of the issue. However, with pre and postnuptial agreements becoming more popular, it’s not uncommon for some to offer a flat fee for these services.

While exact prices will vary between firms, hourly rates often run between $250-$400, with flat fee services often starting around $1,000.

 

How Long Do I Have to Wait to Get a Postnuptial Agreement?

It’s your wedding day and you just said, “I do.” Congratulations! You now qualify for a postnuptial agreement.

In California you do not have to be married for a certain amount of time in order to draft one of these contracts. The only hard line is marriage. So long as you meet that single requirement, you can call up your family law attorney today, and get the process started.

 

Do You Need Help Drafting a Postnuptial Agreement in California?

Pre and post-marriage agreements don’t spell out doom for a relationship. Far from being a harbinger of death, these contracts act as an insurance policy. They protect couples against the possibility of a future divorce trial, and ensure that each spouse is in the relationship for the right reasons.

If you have more questions about pre or post-nuptial agreements in California, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help protect your interests against an outcome we hope will never come.