Postnuptial Agreements In California

Postnuptial agreements in California get used to determine lots of things about marriages.

This can include things like:

who gets to keep the pets during separation
who is responsible for debts incurred by each spouse (i.e., a $40,000 boat you’d have to pay half of in a divorce)
keeping credit cards separate or joint and who owes those debts
keeping the inherited property as separate property
how to split up marital property
how joint bank accounts will get managed during the marriage
who handles what expenses during the marriage (i.e., will all expenses get split 50/50?)
how much will each spouse contribute to retirement and savings
religion and education for the children
property distribution in the event of death
whether one spouse will go back to school
how to handle a business during and after a marriage

This list is not all-inclusive.

But it gives you an idea of what you can accomplish with a postnuptial agreement in California.

Postnups are not only used in the event of a divorce.

They can help couples figure out lots of things during their marriage.

Postnuptial agreements in California help ensure your marriage is successful long term.

Property Distribution Upon Death

Postnuptial agreements in California allow you to control the distribution of your property upon death.

Either spouse can use a California postnup to keep the family from previous marriages from getting an inheritance.

Let’s say you were previously married with children.

If you were to pass away, you probably want some of your inheritance to go to them.

Without a postnup, the state decides who gets what.

And that means your spouse may get everything, leaving your children with nothing.

Postnuptial agreements in California can clarify how property should get distributed.

Financial Stability

Financial instability is a leading cause of divorce in California.

California postnuptial agreements can add stability to your finances during marriage and divorce.

Your postnup will lay out your current debts and assets.

If your spouse has a ton of debt, you may want to keep that as separate property.

Without a postnuptial agreement in California, this would become marital property.

That means, in a separation, you’d be responsible for paying off half your spouse’s debts.

A postnup will also allow you and your significant other to come up with a debt payoff plan prior to your marriage.

As you can see, California postnuptial agreements add lots of financial stability.

What Is A Postnuptial Agreement?

A postnuptial agreement is an agreement that two people enter into AFTER their marriage.

A postnuptial agreement is the same thing as a prenuptial agreement in California.

The only difference is that a:

prenup gets created BEFORE marriage
postnup gets created AFTER the marriage

A postnup allows couples to agree on how to divide property, debts, and other financial issues for separation.

Without a postnuptial agreement in California, the courts will make financial decisions for you in divorce.

Getting a postnup allows you and your spouse to come up with a fair agreement that works for both of you.

From our experience with divorces, when the courts decide, you will not be happy with the decision.

It’s better to come to a fair agreement on your own that works for both of you.

Why Should You Even Get A Postnup In California?

Some of the most common reasons people get a California postnuptial agreement are:

to protect one spouse from being responsible for half of large, separate debts (i.e., student loans)
to protect a family business from a separation
succession planning for ownership within a business
to keep property separate (i.e., family heirlooms, real estate, money)
to protect property that’s getting passed to children of another marriage
to predetermine how to split marital assets and debts
to give one spouse the right to remain in the marital home during a separation

Who Should Get A Postnuptial Agreement?

Postnuptial agreements are not for everyone.

But there are several reasons you should consider getting a postnuptial agreement in California.

You should get a postnup if either of you:

owns assets (i.e., retirement accounts or real estate)
has debts (i.e., student loans or medical bills)
has children from other relationships
has interests in a business
are going to receive any inheritance
wants to be a stay at home parent
has pets

Again, this is not an exhaustive list of why you should get postnuptial agreements in California.

If you have a special case you’re curious about, fill out the form on this page for a free consultation.

How To Get A Postnup In California

You have two options when it comes to how to get a postnup in California.

hire a California postnup lawyer to create the postnup for you
download a do it yourself postnuptial agreement

Your postnup should be written in a way that’s clear, understandable, and legally sound.

If the postnup is written incorrectly, it will not hold up in court during a divorce.

This means that the judge can choose to ignore your postnuptial agreement.

Which means your finances will be divided per the law.

(Also known as how the judge wants to split things up for you.)

Your marital property, separate property, and debts will get split according to family law.

And if one of you dies, the other spouse:

will be responsible to creditors
may not get to keep all your property

If you want to have a postnup attorney create a postnup for you, fill out the form on this page.

We will make sure:

your spouse gets your property in the event of death
separate property is not co-mingled and lost
neither of you gets raked over the coals financially
neither of you gets unfair treatment in the event of separation

But how much does a postnup cost?

How Much Does A Postnuptial Agreement Cost?

How much does a postnup cost depends on your situation.

If your finances are straightforward, then a postnup costs between $1,200 and $2,400.

The more you and your significant other have to negotiate, the more your postnup will cost.

If you have complex financial issues, postnups can cost up to $10,000+.

These are things like businesses, inherited trusts, LLC, partnerships, etc.

For the average person, you can expect a postnup to cost between $1,200 and $2,400.

If you want to save money on the cost of a postnup, check out our Do-It-Yourself Postnups.

What Are The Requirements For A Postnuptial Agreement?

The requirement for postnuptial agreements in California are:

The agreement and amendments must be written and signed.
The agreement can be one-sided. A person can give up rights to get married.
If rights get waived, the postnup must contain a notice of the rights being waived.
Each party must fully disclose their assets, property, and debts.
Each party must voluntarily enter the postnup agreement.
Limitations of alimony cannot be unfair towards one party.

What Issues Can A Postnuptial Agreement Cover?

A postnuptial agreement in California can cover a lot of issues.

A postnuptial agreement defines the rights and obligations during marriage and divorce.

These issues include:

alimony
property ownership
debt repayment

A postnup can include some of the following issues:

each spouse’s right to separate and marital property
each spouse’s right to buy, sell, transfer, spend, or manage property and assets during the marriage
each spouse’s entitlement to spousal support
each spouse’s right to death benefits from the other party’s life insurance policy
protect one spouse from the debts of the other
the making of a will in support of the agreement
the state law governing the agreement
property division upon separation, death, or divorce
any other issue the couple agrees on

Related: How Long Does A Divorce Take

Can A Postnup Determine Child Custody And Child Support?

Child custody and child support can not get determined by a postnuptial agreement in California.

The judge is going to determine what is in the child’s best interest.

Meaning they will be making the decision on how much custody and child support gets awarded.

Parents cannot take this decision-making power away from the judge with a postnuptial agreement.

Even if you did include it in your postnuptial agreement in California, the courts would ignore it.

While you can’t limit child support, you can increase it in the postnup.

Let’s say you both agree on how to divide college expenses.

You can include this in your postnup in California.

Can A Postnuptial Determine Alimony?

You can include alimony in your postnuptial agreement in California.

In California, you can:

limit the amount of alimony
limit the timeframe alimony gets paid
waive the rights to alimony

Postnups limiting alimony are a grey area in family law.

The judge has the right to ignore your postnup limiting alimony.

The judge can still award alimony to your spouse.

Even if there is a postnuptial agreement that limits the alimony.

They will overrule the alimony you agreed upon in the postnup if it seems unfair or retaliatory.

If a parent quits work to stay home with the children, the judge may award them alimony.

If a spouse is marrying into wealth, the judge may not overrule the postnup.

It all depends on what the judge deems as fair.

And in California, both individuals have to hire a separate postnup lawyer for alimony clauses.

Per the Uniform Premarital Agreement Act, both spouses have to have separate lawyers review the postnup for alimony.

If they do not, then alimony clauses in a postnup won’t be enforceable.

How To Make Sure My Postnup Is Enforceable?

To make postnuptial agreements in California enforceable, here’s what to do.

Your postnuptial agreement should be in writing.
You should have two witnesses for your postnup.
You need to file the postnup at your Superior Court Clerk’s office.

There are some other guidelines for signing a postnuptial agreement in California.

Each spouse should be:

old enough to get married (17 years old)
mentally competent (not insane or mentally disabled)
single (not married to another person)
unrelated to each other
truthful about their assets and debts
speaking to an attorney before signing a postnup

According to the Uniform Premarital Act, California postnuptial agreements are only enforceable if each spouse:

received complete information about all assets and debts
had 7 days between receiving and reviewing the postnup
had the opportunity to have an attorney review the postnuptial agreement
was represented by a separate postnup lawyer

Let’s say each spouse does not hire a separate postnup lawyer.

In this case, anything affecting alimony in the postnup will not be enforceable.

A postnup in California will automatically become effective once the couple marries.

A California postnup covers the couple’s present and future property rights.

There are things that are enforceable and unenforceable in a California postnuptial agreement. Enforceable provisions in a postnuptial agreement in California are:

determining alimony amounts and timelines
specifying any property that goes to a child from another marriage
specifying debts that should be marital and separate
defining assets that should be marital and separate
determining how to handle inheritances

You’re able to specify a lot of things with a postnuptial agreement. But let’s talk about what’s unenforceable on a postnuptial agreement in California:

waiving child support
waiving child custody or visitation
penalizing a spouse for filing for divorce

Including unenforceable provisions can cause the judge to ignore your entire postnup.

Is A Verbal Agreement Binding?

The UPMAA requires postnuptial agreements in California to be in writing. This means that a verbal agreement is not binding for postnups. The postnup has to be in writing and signed by both parties.

Can The Courts Reject My Postnup During Divorce?

When you’re separating, the judge decides whether your postnuptial agreement is enforceable.

A judge will throw out the postnuptial agreement in California if one spouse:

forced the other to sign via fraud or duress
did not disclose material facts
misrepresented information
made the agreement so unfair the courts can’t enforce it

Another reason would be if your circumstances have changed, making the postnup unfair.

For example, let’s say the wife started her own business, which is now making millions per year.

At the same time, the husband agreed to stay home with the children and to help support the wife’s business.

They had agreed to no alimony when they both had average jobs and lives.

But now, it would be unfair to the husband.

In a scenario like this, the judge would not enforce the postnuptial agreement for alimony.

Fraud

Fraud occurs when a spouse conceals assets when making the postnup in California.

Let’s say the husband inherited a trust that he earns $10,000 per month from.

If he concealed this from his spouse when he signed the postnup, this is fraud.

Duress

Duress is when one spouse forces the other to sign the postnuptial agreement.

This ‘force’ can be a physical threat or a serious psychological threat.

Non-Disclosure

Non-disclosure or misrepresentation is when one spouse hides assets or debts.

For example, if a spouse has 4 undergraduate degrees and $175,000 in debt.

But they only tell you about one degree and say they are debt-free.

They would be misrepresenting their debts.

(The degrees won’t constitute misrepresentation.)

Can You Change The Postnup Later?

You can change your postnuptial agreement in California anytime.

But both parties must agree to change the postnuptial agreement.

All your postnup lawyer has to do is create a postnup amendment for you.

They will provide witnesses for you.

And they will make sure that any changes properly void old clauses you want to be replaced.

Get Your Postnuptial Agreements In California

If you want the best postnup attorneys to represent you, fill out the form below.

We have the experience needed to ensure that your rights are protected.

We know what successful marriages NEED to figure out.

We know what destroys marriages.

We know what issues cost divorcing spouses tens of thousands of dollars.

We know how to help your marriage last longer.

And have a higher chance of success.

After you fill out the form below, we will set up your free consultation.

Talk soon.

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