If you are familiar with a prenuptial agreement, then you may already know what a postnuptial agreement is. Both agreements make contingencies for how to divide property and care for children in the event of divorce or other circumstances. The primary difference between the two is that a prenuptial agreement is made before marriage and a postnuptial agreement is made after you tie the knot. Each state sets its own rules about marriage, so the requirements for a postnuptial agreement may vary. Most postnuptial requirements are very broad, allowing the parties to come to their own mutual agreement within the bounds of California laws.
Creating Postnuptial Agreements in California
There is no explicit language in the California Family Code for a postnuptial agreement. The code makes provisions for premarital agreements and other marital property agreements, which includes postnuptial agreements.
While they are related to marriage, postnuptial agreements in California are primarily governed by contract law rather than family law. That means California postnuptial agreement requirements are the same as the requirements to enter into most contracts:
- The postnuptial agreement must be in writing.
- Both spouses must voluntarily consent to creation of the agreement and its terms.
- There is transparency in the terms of the postnuptial agreement, meaning both spouses are honest in their statements and representations.
- Both spouses must sign the written agreement and have it notarized.
Postnuptial agreements in California are not valid if they are made under coercion or force, if one party hides information related to finances and property or if the terms of the agreement are extremely unfair to one spouse.
Can I Write My Own Postnuptial Agreement?
You and your spouse can write your own postnuptial agreement. The agreement can make provisions for assets, property, retirement income, child custody and other items, including separate and joint property. The terms can go into effect at divorce, the death of a spouse, infidelity by one spouse or another established event.
What a postnuptial agreement cannot do is waive or limit spousal support, child support or child custody. Judges and the California Family Code for postnuptial a agreement look down on these types of provisions, and the agreement will likely be considered invalid.
Unlike a prenuptial agreement, a postnuptial agreement is presumed invalid in California until it is validated by a judge. To ensure that the terms of the agreement are fair and that all proper elements are included, you may want to consult a family attorney or mediator. That gives you the best chance of having your postnuptial agreement validated by the court.
How Long Is a Prenup in California Valid?
Unless otherwise indicated, a prenuptial agreement is valid indefinitely, but you can establish a term for expiration that you and your spouse agree on, such as the first 10 or 15 years of marriage. You can also set expiration terms for certain provisions of the agreement, such as one spouse being paid a lump sum for each year of marriage up to five years.
Postnuptial agreements in California can be revoked by both spouses at any time and replaced with another written agreement. The same California postnuptial agreement requirements apply to any revised agreement.
- California Legislative Information: Family Code Division 4, Part 5, Chapter 1 General Provisions
- California Legislative Information: Family Code Division 4, Part 5, Chapter 2, Article 2 Premarital Agreements
- San Fernando Valley Bar Association: What Is a Postnuptial Agreement in California
- Law Offices of Donald P. Schweitzer: Do Prenups Expire?
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