In California, prenuptial agreements (prenups) and postnuptial agreements (postnups) are legal contracts designed to protect the financial interests of spouses in the event of divorce or separation. While both serve similar purposes, they differ in their timing and certain legal requirements. Whether you are considering a prenup before marriage or a postnup after tying the knot, it is essential to understand how these agreements work under California family law.
Understanding Community Property
California is a community property state. What that means is that anything acquired during your marriage (whether it be assets or debt) is considered fifty percent yours and fifty percent your spouses. In addition, all income acquired during marriage is considered fifty percent yours and fifty percent your spouses – regardless of which spouse earned the income.
In essence, both prenups and postnups help you and your spouse sidestep a community property arrangement. They each help:
- Protect your assets,
- Clarify what assets and debts you and your spouse each entered the marriage with,
- Maintain your income earned during the marriage as separate property, and
- Make agreements with regard to spousal support in the event of dissolution you.
Prenups and Postnups Defined and Enforceability
A prenuptial agreement is a legal contract entered into by two individuals before they get married. It outlines how assets, debts, and other financial matters will be handled during the marriage and in the event of divorce or death.
A postnuptial agreement is a legal contract signed after marriage. It covers many of the same issues as a prenup, but it can also address new financial circumstances that arise during the marriage.
In order for a Prenuptial or Postnuptial Agreement to be upheld in the event of dissolution, legal separation, or death, the parties must abide by certain requirements. These include:
- The agreement must be in writing and each party must sign the agreement,
- The parties are entitled to be provided full and reasonable disclosure of the property and financial obligations prior to signing the agreement,
- The party that is giving up rights they would be entitled to, but for the agreement, must be represented by an attorney to be sure that the party understood their rights (or they must explicitly waive the representation of an attorney),
- If the party waives the right to an attorney, they must be given at least seven days to review the agreement prior to signing it and they must not have been subjected to fraud, duress or undue influence, and
- The court may also look to any other factors in determining whether the agreement was voluntarily executed.
If the agreement includes a party waiving the right to receive spousal support in the event of dissolution or legal separation, that party must be represented by their own attorney prior to signing the agreement. Otherwise this provision is non-enforceable.
Contact the Family Law Attorneys at Barnholtz & Kugler for Help
If you are contemplating creating either a Prenuptial Agreement or a Postnuptial Agreement, there are many specific requirements that must be followed in order for the Agreement to be upheld. Having trusted counsel that you can count on to create a detailed and proper Prenup or Postnup is imperative. At Barnholtz & Kugler, we will walk you through the process and be sure you are adequately protected. Contact are skilled and passionate family law attorneys today.