While most people are familiar with prenuptial agreements, postnuptial agreements – signed after the wedding and sometimes well into the marriage – are less common. In California, the courts carefully scrutinize postnuptial agreements. If you are in the midst of divorce proceedings, it’s important to understand how your postnuptial agreement could impact your final divorce decree.
The first step is to determine whether or not your postnuptial agreement is legally enforceable. First, the agreement must be in writing; verbal agreements aren’t enforceable. The court then looks for evidence that both you and your spouse signed the agreement freely, without coercion. Next, the contents of the agreement are reviewed to ensure that, at the time it was signed, the postnuptial was generally fair and didn’t disadvantage one spouse. The agreement will also be analyzed to establish that, when it was executed, the agreement contained full financial disclosures from both spouses. Finally, the agreement is scrutinized to verify that each spouse had legal representation and was thus on a level playing field. If one spouse can challenge the enforceability of a postnuptial agreement, then the divorce proceedings become more complicated.
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.
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 858-345-1720 for your free consultation. Our attorneys have experience navigating postnuptial agreements, and are prepared challenge or defend an agreement in divorce proceedings.