While some people might tend to see the suggestion of a prenuptial or postnuptial agreement as a negative thing, having one in place can be beneficial for both spouses. These agreements allow you and your spouse to protect what is most important to you if your marriage does not work out.
Having the right lawyer can help ensure that you are able to clearly state what should happen if you and your spouse divorce. At Contreras Law Firm in San Diego, we offer skilled representation to clients with questions regarding pre- and postnuptial agreements.
What is a Prenuptial Agreement?
A prenuptial agreement, also called a “prenup,” is a contract couples create before they get married. In this document, both partners lay out how their finances and personal property would be handled if they ever decide to divorce or if one spouse passes away. This can include savings, real estate, debts, inheritances, or even family businesses. Both people will talk openly about what they own and what they owe before signing, which should make each party’s expectations clear.
What is a Postnuptial Agreement?
A postnuptial agreement, or “postnup,” gets signed after you are legally married. The main purpose of this contract is similar: spelling out how your money, personal possessions, and any debts will be divided if you ever separate or go through a divorce. People sometimes choose a postnup if something major changed after their wedding. This can be getting a new job, building a business, or receiving a family inheritance.
Other times, a couple did not think they needed an agreement before marriage but later wished they had one. No matter the reason, a postnup requires both sides to tell the truth about everything they own and owe.
What is the Difference Between a Prenup and Postnup Agreement?
Some of the main differences between prenups and postnups include:
Timing
The most straightforward difference is when they’re signed. A prenup gets put into place before a marriage legally occurs. A postnup is done afterward, at any point in the marriage.
Legal Scrutiny
Courts often look at postnups a bit more closely because people may have different bargaining power once married. Judges check if both sides agreed voluntarily to the terms.
Reasons for Using Either Option
Couples turn to prenups before marriage, usually for peace of mind, to protect one family’s financial interests, or in ties to business arrangements. Postnups fit when plans change down the road, unexpected assets show up, or things feel uncertain later in the relationship.
Requirements for Valid Prenuptial and Postnuptial Agreements in San Diego
Prenuptial and postnuptial agreements in California both set financial expectations between spouses, but the rules are slightly different depending on when you sign. If you are considering one of these agreements in San Diego, it’s important to understand both the legal landscape and the details that make such contracts enforceable.
Prenuptial Agreements
A prenup is governed by the Uniform Premarital Agreement Act (UPAA). Essentially, a prenup pushes aside standard California community-property rules and lets couples say what should happen to their money, property, and debts if the marriage ends.
What Can a Prenup Cover?
You and your future spouse can use a prenup to set ground rules about:
- Income earned and income expectations
- Ownership of property bought before or during marriage
- Management and division of debts
- Spousal support (how much, if any, will be paid in a divorce)
- Other financial arrangements during marriage
However, a prenup cannot decide on child custody or child support. Only the court does that, making sure decisions are in the best interest of children involved.
Validity Requirements
To be effective in California courts, a prenup must meet some specific standards:
Full Financial Disclosure
Both parties need to be open about what they own and owe. If anyone hides anything, that can later get the agreement tossed out.
Independent Counsel
Each person should have their own lawyer, especially if they want to waive spousal support rights. While not one hundred percent mandatory, courts take this very seriously when judging the fairness of an agreement.
In writing
A prenup in California must be in writing to be enforceable.
7-Day Rule
The law requires that both parties have at least seven days to review the final draft before it is signed. This gives both a fair chance to think through the agreement or show it to an attorney.
Fairness
A California prenup has to look fair at the time it’s signed, and also when someone wants to have it enforced in court later. Pressure or manipulation can lead a judge to determine the agreement is invalid.
What Can Make a Prenup Invalid?
Agreements can become unenforceable because of:
- Incomplete asset or debt disclosures
- Lack of legal representation (mostly for spousal support waivers)
- Not giving the required 7 days for review
- One party was pressured into signing the agreement
- Clauses that clearly give more power to one person or put the other in a dire position
- Fraud, deceit, or deliberate misstatements
1615.
(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
The terms must be written clearly so that there are no ambiguities to argue about later.
Postnuptial Agreements
A postnuptial agreement is signed after marriage begins. Here’s how these work in California:
Signed Voluntarily (and in Writing)
California law requires that a postnup be in writing, and only signed once each spouse freely agrees to the terms.
Full Financial Disclosure
Both sides must openly list what they earn, own, and owe. Any hidden charge cards, cash reserves, property, or unknown debts can make this document invalid. If the agreement excessively favors one spouse or leaves the other in hardship, judges can and sometimes do discard those terms.
Independent Counsel is Recommended
Having separate lawyers isn’t technically required for postnups, but judges pay attention to whether the parties have legal review or not. The Seven-Day Rule Still Applies
Once both see the final agreement, each must have seven days before signing.
No Child-Related Terms Allowed
The law in California says postnups cannot make terms regarding child custody or support.
Enforcement of Premarital and Postnuptial Agreements
If the judge finds the agreements meet the legal requirements, they will enforce them and order both parties to abide by whatever is written in the pre or postnuptial document. Agreements that break the law or that weren’t entered into voluntarily will not be enforced by the court.
The Advantages Of Prenuptial And Postnuptial Agreements
You do not want to put yourself or your family in a position where your separate property gets liquidated or split upon a future divorce or death. We have years of experience negotiating, drafting, reviewing and litigating prenuptial and postnuptial agreements. We will work to ensure that you are protected under California law. Items covered by these agreements include:
- Partnership interests
- Business assets
- Children from a prior marriage and potential inheritance rights
- Real property
- Stocks, bonds and retirement funds
- Debt
- Potential increase in income due to ongoing degrees
- Spousal support/alimony
These issues are all important to consider when entering a marriage, and drafting prenuptial or postnuptial agreements can ensure that your assets are well-protected from any unfortunate future event. We can help you draft an agreement that is right for your particular situation.
If your spouse-to-be has proposed getting a prenup and you need advice about your rights, our lawyers also review prenuptial agreements. When appropriate, we will work to negotiate clearer terms that help you protect your rights. If there was anything improper about the drafting or execution of your agreement, we are fully prepared to litigate the matter in court.
Schedule A Free Consultation With An Experienced San Diego Prenup and Post Nuptial Attorney
To learn more about your options, call us today at (619) 238-0616 or send us an email. We will provide detailed guidance to help you determine the right agreement for your situation.