Is Your Postnuptial Agreement Legally Enforceable?
If one spouse can challenge the enforceability of a postnuptial agreement, then the divorce proceedings become more complicated.
The following factors must exist in order for a postnuptial agreement to be considered legally enforceable:
- The agreement must be in writing; verbal agreements aren’t enforceable.
- There must be evidence that both you and your spouse signed the agreement freely, without coercion.
- The contents of the agreement must be fair and not disadvantage one spouse.
- The agreement must contain full financial disclosures from both spouses.
- At the time the agreement was made, each spouse must have had legal representation to ensure it was created on a level playing field.
Beyond general enforceability issues, the specific provisions of a postnuptial agreement are also examined. For example, a postnuptial agreement cannot state that one spouse waives child support, and it cannot outline child custody and visitation rights. However, even if specific provisions are deemed unenforceable, the other provisions of the postnuptial agreement can still be valid.
What Is Included in a Postnuptial Agreement?
Postnuptial agreements usually address financial issues. An agreement may limit spousal support, list separate property and community property, outline how a jointly owned business will be divided and managed, who will keep the family home, and how other assets and debts will be allocated.
If you are contemplating entering into a postnuptial agreement or have a postnuptial agreement and are considering a divorce, call Griffith, Young & Lass at (858) 371-5569. Our attorneys have experience navigating postnuptial agreements and are prepared challenge or defend an agreement in divorce proceedings.