Postnuptial Agreement Frequently Asked Questions
- What is a postnuptial agreement? A postnuptial agreement is a contract similar to a prenuptial agreement, except the couple signs it after they are married. Typically, a postnuptial agreement addresses issues that are addressed in prenuptial agreements such as what assets are community property and which are separate property, who is responsible for any debts, and who will be responsible for alimony and for how much and how long.
- Why would someone want to sign a postnuptial agreement? There are several reasons why a couple might sign a postnuptial agreement. Perhaps the couple intended to sign a prenuptial agreement, but never did. Perhaps there is a significant change in income, and the terms of a prenuptial agreement are no longer fair. If one spouse decides to give up their career in favor of “domestic duties,” a postnuptial agreement could protect the spouse. If one spouse starts a business, a postnuptial agreement can define the ownership and valuation of the business. If a spouse is taking on debt to start a business, a postnuptial agreement can declare that a large asset, like a house, is separate property, protecting it from creditors. If one spouse is unfaithful, the other spouse may require a postnuptial agreement to prevent a divorce, often with a large infidelity penalty, also known as a Beyoncé clause in reference to a rumor that Jay-Z and Beyoncé signed a postnuptial agreement with a massive infidelity penalty.
- Will the court enforce a postnuptial agreement? In California, courts generally enforce postnuptial agreements, so long as certain conditions are met. These are the same conditions that the court requires for a valid prenuptial agreement. The agreement must be in writing. Both parties must voluntarily agree to the terms, i.e. one spouse cannot threaten divorce unless the other one signs. Usually voluntary also means that each side should review the agreement with their own separate attorneys. There must be a full disclosure of assets, debts, and income. The terms of the agreement must be fair. The court will not enforce a postnuptial agreement that is horribly one-sided. Lastly, the agreement must be validly executed, meaning it must be signed by both parties, witnessed, and notarized.
- Can I put any terms I want into it? In California, spousal support provisions are heavily scrutinized. If one spouse earns significantly more than they did when the agreement was signed, a judge may alter the terms. Spousal support cannot be waived entirely. Postnuptial agreements cannot waive child support nor can it waive one spouse’s visitation rights. Postnuptial agreements cannot encourage divorce or force one spouse to commit an illegal act. If a postnuptial agreement contains one or two unenforceable provisions (like an out of date spousal support provision), the court may invalidate those specific provisions, but if there are too many problems, a court could declare the entire agreement unenforceable.
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