California law recognizes a post nuptial agreement as a valid agreement between a married couple, entered into after the marriage has begun. There are many reasons a couple might choose to get a post nuptial agreement, like if one spouse has become highly successful and would like to protect her new assets. A post nuptial agreement is flexible and allows a couple to clearly state how the couple would like their assets divided upon divorce or separation.
Post Nuptial Agreement vs. Prenuptial Agreement
A prenuptial agreement is an agreement between a couple before the couple is married. In contrast, a post nuptial agreement is a contract between a married couple. According to California Family Code Section 1617, a prenuptial agreement is void if the party against whom enforcement is sought was not represented by independent counsel, or did not expressly waive independent counsel. A prenuptial agreement will also be found void if a party does not have seven days from being presented with the agreement to seek independent counsel. However, these requirements do not apply to post nuptial agreements.
Post Nuptial Requirements
The post nuptial agreement must be in writing and signed by both parties. According to California Civil Code section 1624, otherwise known as the Statute of Frauds, an agreement that cannot be performed within one year must be in writing. Both parties should be fully informed about the marital property, and should be represented by independent counsel. Other than these general requirements, a married couple is free to negotiate any terms they would like.
After a couple becomes married, their legal responsibilities to one another changes. According to Family Code section 721 (b) the two become fiduciaries of one another and the general rules governing fiduciary relationships apply. Family Code section 721 describes the relationship as imposing "a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other." Therefore, if the agreement is challenged later, the burden of proof that the post nuptial agreement is fair is much higher and will be harder to prove than the burden of proof in a routine contractual matter.