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What is a Post-Nuptial Agreement?

In a 2015 survey by the American Academy of Matrimonial Lawyers, half of divorce lawyers cited an increase in spouses seeking postnuptial agreements over the prior three years. 

A postnuptial agreement is a legal document designed for couples who are already married. Postnuptial agreements are a relatively new development under U.S. law. Prior to the 1970’s, postnuptial agreements were generally not enforceable. This was largely based on the idea that a married couple became a single unit at the time of their marriage and a single person or entity cannot enter into an agreement with itself. From a public policy standpoint, postnuptial agreements were also viewed in a negative light for a long time because of the perception that they encouraged divorce. 

However, in the 1970’s, when more couples began divorcing and more states, including California, enacted “no fault” divorce statutes, postnuptial agreements became more common and became more widely enforced. 

Generally, a postnuptial agreement must meet the following criteria: 

  1. Written: an oral agreement dividing marital assets is not enforceable; 
  2. Signed: Both spouses have to sign the agreement, and have it notarized; 
  3. Voluntary: One spouse cannot threaten, deceive, coerce, or physically force the other spouse to sign the agreement; 
  4. Fair: A postnuptial agreement cannot be extremely one-sided or unfair; 
  5. Full Disclosure: Both spouses must disclose information about their assets, income, debts, and property.

In California, couples can craft postnuptial agreements delineating any provisions they desire, except limiting a parent’s child support obligation. Some provisions commonly included in postnuptial agreements are as follows: 

  • How the couple will divide property and other assets in the event their marriage ends; 
  • Whether one spouse will pay spousal support and for how long such support payments will be continued; and,
  • How marital debts will be divided in the event of divorce, including the mortgage, credit card debts, and other loans. 

When a couple executes a postnuptial agreement, it does not automatically mean that they are contemplating divorce. Rather, there are other common reasons for entering into a postnuptial agreement: 

  1. To clearly define each party’s wishes for the property they brought into the marriage; 
  2. When spouses have children from previous marriages or relationships, they may want to make sure that certain assets would pass to those children no matter what happens. A postnuptial agreement can help protect children’s inheritances; 
  3. If one party has been financially irresponsible or has encountered legal trouble during the marriage; 
  4. If one spouse gets a financial windfall (i.e. inheritance, lottery winnings, significant salary bump), the couple may want to consider their finances and protect themselves and their assets; and 
  5. If one spouse stopped working to stay home and care for the children, a postnuptial agreement can help make sure the stay-at-home spouse will have the financial resources they need in the event the marriage ends in divorce. 

If you are considering entering into a postnuptial agreement with your spouse, it is important to understand that these legal documents are not ironclad. Even if a postnuptial agreement meets all the threshold requirements to be valid and enforceable, courts may still choose not to uphold the agreement. However, there are ways to strengthen the likelihood that the Court will enforce your agreement, such as providing one another with adequate disclosures and ensuring that each party understands the terms of the agreement and are executing the document voluntarily. 

An experienced attorney with Bremer Whyte Brown & O’Meara can help to ensure that your post-nuptial agreement is not only in your best interest, but that the agreement meets the requirements of California law.