This article uncovers:
- What a postnuptial agreement is.
- What is and is not addressable in a postnuptial agreement.
- The relationship between postnuptial agreements and California community property laws.
What Is A Postnuptial Agreement?
A postnuptial agreement is an agreement you can make with your spouse after getting married.
These are usually used to transfer titles and property because of tax benefits in certain situations. They may also unlock estate planning benefits in some cases.
These differ considerably from prenuptial agreements in that the consideration is drastically different. For a prenuptial agreement, you are disclosing information or material facts of assets or debts previously unknown or not legally made clear to a person who you intend to be married to but you are not yet actually married to.
This is not the case with a postnuptial agreement because you have already entered into the “agreement” of marriage. You have theoretically disclosed, if not merged, your assets or debts by establishing the relationship. You also now have a fiduciary duty to each other that you do not have before you are married.
Postnuptial agreements are even riper for invalidation than prenuptial agreements because there is no consideration of the marriage and on top of that there is the expected fiduciary duty to your spouse. If the main question for a prenuptial agreement is, Is it FAIR? that is even MORE of the critical question for postnuptial agreements.
Postnuptial agreements can be used in an abusive manner. For example, one spouse may have their spouse sign one without legal counsel or apparent reason for the agreement based on the language used in it, but the spouse signing it confers an asset or property completely to the other spouse. The question is not going to be simply, Did this spouse sign the asset away? But WHY and is it FAIR?
What Can And Cannot Be Addressed In A Postnuptial Agreement?
Postnuptial agreements generally allow for similar things as premarital agreements, including:
They do not address things like child custody or support. Some people try to use postnuptial agreements to protect themselves and more specifically their assets against alcohol or substance abuse from one spouse in the event that it would bring financial ruin to the couple. California courts generally do not allow postnuptial agreements to be used in this manner, as they do not involve themselves with ongoing family matters as much as they do the division of property and assets in the event of a divorce.
Can You Remain Married But Use a Postnuptial Agreement To Protect Yourself From Something Like Your Spouse’s Business Debt?
Many people try to use postnuptial agreements in this way, but it is difficult because most third parties will not be bound by these agreements among the spouses. We generally advise people to consider these things before marrying, as the courts do not usually approve of these types of uses. If you decide to marry still, then it is better to have a prenuptial agreement in place than rely on a postnuptial agreement.
A postnuptial agreement in this context will ultimately be nothing more than an agreement between you and your spouse. The IRS, credit card companies, and any other third party will be uninterested in whatever agreement you have with your spouse. The agreement would not be valid between you and a third party, but you could use it to try to get your spouse to cover a debt in a divorce based on this agreement.
With the guidance of a skilled attorney for Postnuptial Agreements, you can have the peace of mind that comes with knowing that we’ll make it look easy.
For more information on Postnuptial Agreement Law in California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling SoCal Family Law Group (858) 225-4840 today.
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