When couples take their marriage vows, they focus on beginning a new life together filled with shared happiness and love, not on planning for worst-case scenarios. Most couples expect their marriage to last a lifetime, but unfortunately, this outcome is not guaranteed. Maintaining a successful marriage is no easy feat, and up to 50% of couples that experience irreconcilable relationship problems will eventually decide to file for divorce. To protect their rights and interests in the face of an uncertain future, many married couples in California choose to create prenuptial or postnuptial agreements. These agreements clearly outline the obligations and expectations for each spouse and establish an enforceable plan for property division, spousal support, and other legal issues involved in dissolving the marriage.
If you anticipate a separation or divorce or simply want to understand your options for protecting your future, consult the following information to learn more about postnuptial agreements, then contact the Law Offices of Stephanie J. Squires. Our expert team of family law attorneys offers comprehensive, compassionate, and hands-on legal representation to support you during this difficult time. We can review your family’s circumstances and help you create a fair, valid, and legally binding postnuptial agreement that allows you to obtain a favorable resolution and move forward with your separate lives on good terms.
What Is a Postnuptial Agreement?
A postnuptial agreement refers to a written, legally binding contract executed between two spouses within an existing marriage to settle their financial affairs in the event of a divorce. Also known as a post-marital agreement or a “postnup,” this type of contract allows a couple to agree upon and establish clear terms for a separation to protect their rights and ensure equitable distribution of property without undergoing expensive, time-consuming divorce litigation.
Specifically, a postnuptial agreement outlines ownership of financial assets, specifies how these assets will be distributed after a divorce, and determines any other financial issues involved in a divorce. It can encompass various legal decisions regarding a couple’s finances, including asset and property division, allocation of debts, investments, inheritance, retirement accounts, pet care, and spousal support.However, a postnuptial agreement that contains provisions for child custody and child support is not considered enforceable.
What Is the Difference Between a Postnuptial Agreement and a Prenuptial Agreement?
Both postnuptial and prenuptial agreements are designed to manage the division of assets if a couple decides to dissolve their marriage, but they differ in terms of when they are created, how they are enforced, and the benefits they offer. A prenuptial agreement is established before the spouses enter marriage, while a postnuptial agreement can be created at any point after the marriage is finalized. A prenuptial agreement becomes valid after it is signed, but California law requires that the court approve a postnuptial agreement before it is considered valid and legally enforceable.
Prenuptial agreements can be valuable for couples by prompting them to discuss sensitive financial issues before marrying, helping to define expectations, limit potential misunderstandings, and obtaining peace of mind for the future. If spouses choose not to create a prenup before getting married but over time realize that such an agreement would be a good idea, a postnup allows them to make realistic decisions about financial matters based on their current circumstances. This allows them to determine how their assets have grown and changed over time and address concerns that arise during the marriage.
Why Do I Need a Postnuptial Agreement?
Common reasons for creating a postnuptial agreement include:
- Defining clear expectations for financial affairs after a divorce
- Protecting an inheritance for children from previous relationships
- Accounting for substantial changes in financial circumstances, such as significant salary raises, lottery winnings, or large inheritances
- Holding a spouse accountable for repayment of debt accrued before the marriage
- Ensuring that a spouse who has decided to stay home to care for children will receive the financial resources they need to support themselves after a divorce
- Repaying gifts, such as the parents of a spouse providing a down payment for a house
- Dividing interests in a business owned by one or both spouses
- Protecting a spouse and their assets from the financially irresponsible or illegal actions of the other spouse, such as excess spending, gambling, substance abuse, criminal convictions, or domestic violence
- Rebuilding a relationship after infidelity or other breach of trust
Do Postnuptial Agreements Hold Up in Court?
For a postnuptial agreement to be considered valid by the court and enforceable in California, it must meet the following basic requirements:
- It must be written. A postnuptial agreement must be in writing to be approved by the court. Oral agreements are not valid.
- It must be voluntary. Both spouses must have signed the agreement intentionally and voluntarily of their own free will. Any indication of coercion,fraud, deception, threat, or physical force makes the agreement null and void.
- It must be fair.A postnuptial agreement cannot be unfair or unconscionable, meaning blatantly one-sided or otherwise unjust toward one spouse when considering the facts and circumstances of the relationship. The court will not approve an agreement containing unreasonable or unfair provisions to either party, such as leaving them with fewer assets than they possessed when they entered the marriage.
- It must contain full disclosure. When they create the agreement, both parties must make full, fair disclosure to the other party regarding their assets, property, income, and liabilities. Attempting to hide information or providing incomplete or inaccurate information makes the agreement unenforceable.
- It must feature specific language. The spouses must use clear, transparent, specific language when establishing the terms and provisions of the agreement. An agreement that uses ambiguous language will not hold up in court.
- It must be legally executed. The postnuptial agreement must meet all legal requirements in the spouses’ state of residence. This involves both parties signing the agreement and having it properly notarized.
Can You Write Your Own Postnuptial Agreement?
In California, you can write your own postnuptial agreement, but this option is not recommended. These agreements must meet numerous legal requirements to be considered valid and enforceable by law, and most non-legal professionals simply do not possess the knowledge and resources to draft a sufficient agreement. Moreover, attempting to complete this process on your own leaves you vulnerable to costly mistakes that can ultimately undermine your own interests. California courts have deemed many postnuptial agreements invalid for various reasons, from failing to disclose all assets or establish tax protocol to using ambiguous language that leaves the terms of the agreement open to interpretation. The only way to ensure you can create a valid, binding postnuptial agreement that meets all requirements is to secure legal representation from an experienced family law attorney.
How Much Does a Postnup Cost in Upland, CA?
The cost of creating and filing a postnuptial agreement depends on the unique circumstances of your case. Several factors influence this cost, including:
- The complexity of your finances
- If you need a financial audit to determine your assets and liabilities
- The degree to which both parties agree on the terms and provisions of the agreement
- Whether you decide to create the agreement yourself or retain the services of an attorney
Family law attorneys who specialize in postnuptial agreements may charge a flat fee or bill clients hourly for their services. In relatively straightforward, uncontested cases, attorneys typically charge $1,000 to $3,000 to create and file a postnuptial agreement. However, complicated cases involving significant assets often require more complex negotiations and provisions, so the attorney fees are more expensive and generally start at around $10,000.
Have Questions About Filing a Postnup? Contact Us
Dissolving a marriage can be an incredibly challenging, emotionally devastating event. However, failing to take the right course of action now can have serious, long-term consequences for your future and the future of your loved ones. If you are considering filing for divorce or are experiencing marital difficulties that are causing you concern about your future, contact the Law Office of Stephanie J. Squires today to discuss your options. For over two decades, Ms. Squires and her team of professionals have successfully represented clients in Upland and throughout Southern California in all types of family law matters. At our firm, we understand that every family is unique, so we work with you to understand your situation, identify your priorities, and develop a personalized, hands-on solution to meet your goals.
Talk to a Family Law Divorce Lawyer for an Ending Marriage
Divorce is never easy, but the right representation can make a world of difference. Contact the Law Office of Stephanie J. Squires today to schedule a consultation. Our team has the legal knowledge, experience, and litigation skills you need to effectively navigate this difficult time, and we are dedicated to delivering the best results in your case. Whether you are interested in creating a postnuptial agreement or participating in divorce mediation to negotiate a fair, mutually beneficial solution for your family, we can protect your interests, provide expert advice, and advocate on your behalf during your divorce proceedings.