Postnuptial Agreement Frequently Asked Questions

At SD Esquire, we receive many questions regarding postnuptial agreements. Below are answers to FAQs we receive. Contact us if you would like our attorney to draft or review your postnuptial agreement. We provide affordable flat fee postnuptial agreement review services starting at $1200.  Our postnuptial agreement drafting services start at $1500. We only represent one party in postnup agreement drafting or review. We do not provide dual representation. Sign up  to get started.

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What is a postnuptial agreement?

A postnuptial agreement is a contractual agreement between spouses, similar to a prenuptial agreement.  The main difference between a prenuptial agreement and a postnuptial agreement is that a prenuptial agreement is signed before the wedding, while a postnuptial agreement is signed afterwards.

What terms can it contain?

A postnuptial agreement contains terms similar to a prenuptial agreement.  It outlines how property will be divided and who is responsible for paying marital debt in the event of a divorce.  It can also define which assets will be treated as community property and which assets will be treated as separate property.

Are there any terms that a postnuptial agreement cannot contain?

While couples may include a provision for spousal support in a postnuptial agreement, there is no guarantee that a court will honor it.  Spousal support provisions in pre and postnuptial agreements are heavily scrutinized by California courts.  A clause that waives spousal support entirely will not likely be enforced.  In California, child custody, visitation, and support issues are handled during the divorce process, and should not be included in a postnuptial agreement.  The agreement cannot contain any provisions that would be considered “unconscionable,” for example it cannot encourage the couple to divorce.

When will the courts enforce a postnuptial agreement?

In California, for a postnuptial agreement to be enforceable, it must meet four basic conditions.  These are the same conditions for a prenuptial agreement: it must be voluntarily signed (e.g. one spouse cannot threaten to divorce the other unless the agreement is signed); there must be a full disclosure of assets, debts and income before signing; the agreement must be in writing; and the agreement must be fair.  In many states, a voluntarily signed pre or postnuptial agreement is one that both spouses had reviewed by their own individual attorney.  If an agreement contains too many provisions that are invalid, the court may void the entire agreement.

Why would a couple want to create a postnuptial agreement?

There are many reasons why a couple might want a postnuptial agreement.  One common reason for a postnuptial agreement is that the couple never signed a prenuptial agreement.  Another reason for a postnuptial agreement is that the couple signed a prenuptial agreement, but their financial situation has changed dramatically and now the original terms of the prenuptial agreement are no longer fair.  If one spouse starts a business, a prenuptial agreement can clearly define the ownership and the valuation of the business, and can protect the business in the event of a divorce. If a spouse is taking on a substantial amount of debt to start a business, the couple may opt for an agreement that defines large assets, such as their house, as separate property to protect it from creditors.

Work with an attorney to develop a postnuptial agreement. Do not rely on do-it-yourself websites. San Diego Esquire provides flat fee postnuptial agreement drafting and review services for California residents. You can work directly with our attorney to make sure your separate and community property interest is best protected in a postnuptial agreement.

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