How Postnuptial Agreements Work in CA
A postnuptial agreement is a voluntary, written contract signed by both spouses after marriage or domestic partnership in California. It is primarily used to determine the division of property and spousal support in the event of a divorce or legal separation. A postnuptial agreement usually looks and is formatted similarly to a prenuptial agreement and may use similar supportive language. The major difference between these two agreements is only in their timing. A postnuptial agreement is entered into after marriage, and a prenuptial agreement is entered into before the marriage occurs.
Simply put, a postnuptial agreement allows you and your spouse to stipulate how your assets and debts are divided, whether spousal support will be paid, if so for how much and for how long, and what would happen if either of you die . The agreement doesn’t have to deal with any of these issues. It could be limited only to the disposition of certain property.
The biggest reason that couples choose to sign a postnuptial agreement is to alter the existing community property and debt-sharing provisions provided by the California Family Code to their advantage. However, California courts have held that other provisions could be included in a marital termination agreement so long as the provision is not against public policy. For example, one spouse may agree to share custody of the kids with the other, or the amount of child support could be agreed upon.
A postnuptial agreement can be entered into anytime during the marriage. It is important to note the special provisions that apply to spouses and registered domestic partners in a domestic partnership.
Legal Prerequisites for Postnuptials in California
Like prenuptials, postnuptial agreements must be governed by California Family Code section 1615 to be enforceable, which states that for the agreement to be enforceable, the following requirements must be met: The couple must not be acting under duress, or pressure from a threat or fear of harm. The agreement must not have been unconscionable or unfair, for example the terms should not leave one party virtually nothing, while the other party retains potentially all of the marital assets. Both parties enter into the agreement voluntarily with the advice of independent legal counsel. For this reason, it is important that you have your own attorney review it in order to make sure you understand the agreement and its impact, prior to signing it. In other words, a postnuptial agreement that is signed under duress or when one party does not have an opportunity to review the agreement with an independent attorney, or one that is inherently unfair, will likely be deemed invalid.
Obtaining a Postnuptial Agreement Sample in a PDF
If your spouse has asked you to use a postnuptial agreement, you may be wondering what options you have when it comes to accessing a sample form. One of the fastest and most convenient ways to obtain an online postnuptial agreement California template in PDF format is to visit the state’s government website or download it from a trustworthy website. However, you should never use a template directly without first having it reviewed by your attorney. A poorly drafted agreement could lead to significant financial consequences for you in the long run, so it is essential to complete all of your paperwork in the presence of a qualified legal professional.
A good place to download a free form for a postnuptial agreement in California is the California Department of Justice website, which provides a wealth of PDF legal documents. You can either review your form to ensure its accuracy or print it out and provide it to your attorney. Other sites also exist where you can download an agreement and then modify it or use it as a reference tool.
As with all other types of legal documents, it is important to work with a lawyer to ensure that all of the necessary information is present in your form and that you are not missing any vital steps in the process. An attorney can also help to ensure that all of the considerations in your agreement adhere to the law and are valid and enforceable in court.
Tailoring Your Postnuptial Agreement
Tailoring a postnuptial agreement template to the specific circumstances of a couple in California can significantly streamline the process of creating a custom agreement. The first step in the customization process is to identify the assets and debts that the couple possesses together, as well as any separate property that each brought into the marriage. This is a crucial step, as it allows the couple to determine what they would like to include in the agreement. For example, some couples may want to address ownership of real estate or business interests, while others focus on the distribution of personal property and bank accounts.
Once the couple has identified their assets and debts, they may choose to focus on how they intend to manage these assets moving forward. This could involve a range of considerations , such as deciding how funds should be allocated to joint accounts or determining how certain assets should be distributed in the event of divorce or death. The key is to carefully and thoughtfully determine how to best manage assets and debts in a way that is fair to both parties.
Another important aspect of customizing a postnuptial agreement is to consider any unique factors that could impact the couple’s circumstances. For instance, couples in blended families may need to address how children from previous relationships will be provided for in the event of divorce or death. Alternatively, couples who are in high-net-worth situations may need to address the division of retirement accounts or other employee benefits.
By taking the time to carefully identify assets and debts, establish how they should be managed, and consider any unique circumstances, couples are able to create a postnuptial agreement that reflects their specific needs and goals. This personalized approach can ultimately help to save time and reduce conflict in the event of divorce.
The Value of Postnuptial Agreements for California Residents
A postnuptial agreement is designed to go into effect when you are married, or can be made retroactively upon separation. In either event, the goal is to leave no doubt as to your intentions regarding assets and liability during your marriage. A recent article published by Kiplinger gives several examples of why obtaining a postnuptial agreement could help you and your spouse:
Manages finances. By clearly defining debts and income concerns, postnuptial agreements provide a road map for how high-cost disputes will be handled, including the responsibility for college debt incurred during hopeful years as a student.
Helps with retirement. Taking in incomes and assets from your spouse not only broadens your income or resources, but also enables you to save your own money and prepare for a future where a divorce could happen, without exposing your income to the trailer hitch of the divorce process.
Improves marital harmony. When you are living the life of a couple without any surprises about how to manage the finances or how the finances are managed, it can make everyday life easier and smoother.
There are many other benefits that a postnuptial agreement can offer you and your spouse. If you have specific concerns related to finances or asset management that require the specifics of the postnuptial agreement. Having the support of a skilled California divorce attorney can go a long way toward ensuring that all of the relevant issues are addressed in a comprehensive manner.
Postnuptial Cruxes and Constraints
However, there are potential challenges and limitations to these agreements and their enforceability. At the outset, postnuptial agreements can be contested on various grounds, including fault, lack of proper consideration, and lack of capacity. As such, in California, only those agreements entered into prior to permanent physical separation have been found to be enforceable as this is a time when both parties are still vested in the marital relationship and care what the other thinks about his or her financial decisions. In addition, in order for the agreement to be enforceable, consideration must be given. Simply re-establishing the marital relationship, which is not complete until the husband and wife resume living in the same household, is not sufficient.
While postnuptial agreements may provide for a division of property acquired during the marriage, they cannot be used to provide for support between spouses or between parents and children, or reduce past due support obligations . Nor can such agreements be used to waive spousal rights to pensions accrued during the marriage if the parties were married prior to January 1, 1975 as California law has established that such amendments to pension benefits may not be modified or waived by any agreement. Other important limitations include the ability to waive child support and spousal support.
In addition to these limitations, cases concerning challenged postnuptial agreements demonstrate that procedural issues have a significant impact on whether or not a postnuptial agreement will be enforced. Recall that to be enforceable under California law, both parties to the agreement must have independent counsel. An agreement is not enforceable, even with independent counsel, if the provisions in the agreement are unconscionable. Not only must the terms of the agreement be fair, but the process by which the agreement was achieved must also be free from undue influence. In cases where the circumstances indicate that one party had an advantage over the other in negotiating the terms of the agreement, courts may be disinclined to enforce the agreement.