Postnuptial Agreement Lawyers

A post-nuptial agreement, also called an inter-marital agreement, is a written agreement that defines the division of spouses’ respective community or separate property rights and debts. A post-nuptial agreement is entered into after the spouses are married (post-nuptial = after marriage). When prospective spouses enter into an agreement that defines their respective rights to community property and deb before marriage those prospective spouses are entering into a prenuptial agreement.

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Post-nuptial agreements are binding contracts that may materially affect a person’s legal rights to property upon divorce, death, or legal separation. It’s generally a good idea to consult with a family law lawyer before entering into a post-nuptial agreement. In fact, some terms of a post-nuptial agreement are enforceable unless the parties have separate attorneys that sign off on the agreement.

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Community & Separate Property

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Community Property Defined: Generally speaking, all assets and debts acquired by spouses during marriage are jointly and equally owned by and between those spouses.

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Separate Property Defined: Generally speaking, all assets acquired before marriage, after legal separation, or by gift or inheritance to only one spouse, is the separate property of the acquiring spouse.

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Division of Property without a Post-Nuptial Agreement: Upon divorce, death, or legal separation, spouses divide the value of community property equally (50/50). Community debt is usually divided equally but there are exceptions to this rule where certain equitable factors are present, such as which spouse has the ability to pay, which spouse enjoyed the benefit of the debt, if any, which spouse was intended to be the spouse that would pay the community debt when acquired, and more.

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Note: As stated, without an agreement between the spouses, such as a prenuptial agreement, post-nuptial agreement, or marital settlement agreement, the division of community property is divided equally; however, it is the value of the community property that is divided equally, not the actual community property asset itself, unless the community property asset itself is not capable of equal and equitable division. With separate property assets, the asset, in its undivided state, belongs to the acquiring spouse.

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For example: If husband and wife do not have a prenuptial or post-nuptial agreement to the contrary, then upon the spouses’ divorce or legal separation, a fully paid-for community property home would be granted to one spouse, and the other spouse would enjoy an offset award sufficient to equalize the unequal division of the community property home (assuming the spouses do not decide to sell the home and split the proceeds or are otherwise ordered to sell the home for the same purpose).

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On the other hand, if husband acquires a separate property house during the marriage (i.e. inheritance, gift, etc.), then the separate property house belongs to husband upon divorce or legal separation (unless a prenuptial or post-nuptial agreements provides for a different division of separate property upon divorce or legal separation.

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Benefits of a Post-nuptial Agreement: With post-nuptial (or prenuptial) agreements, spouses may agree to divide community and/or separate property (and debt) as they wish. In addition, a post-nuptial agreement may be used to predetermine post-divorce spousal support (alimony) issues.

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Post-nuptial v. Prenuptial Agreements

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Differences between post-nuptial and prenuptial agreements include: 1) Post-nuptial agreements are entered into during marriage; prenuptial agreements are entered into before marriage, 2) Prenuptial agreements are presumed to be valid; post-nuptial agreements are presumed to be invalid, 3) post-nuptial agreements must be entered into with the highest degree of good faith and fair dealing between the spouses because spouses are fiduciaries to each other (a legal relationship, that is built on trust, with a duty to each spouse to act in good faith and fair dealing to the other spouse); there is no fiduciary requirement when entering into a prenuptial agreement.

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Reasons for Signing Post-nuptial Agreements

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Spouses may agree to post-nuptial terms at any time during their marriage. Common reasons spouses enter into post-nuptial agreements include: a spouse develops a drug or gambling addiction during marriage, a spouse overspends, a spouses is unfaithful (infidelity) during marriage, a spouse wants to protect business assets or inheritance, a spouse wants to protect personal income after his or her spouse becomes ill, a spouse wants to protect retirement benefits, a spouse wants to avoid litigation at divorce or legal separation, a spouse wants to protect the inheritance rights of his or her children born before marriage, and more.

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Common Post-nuptial Terms

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Post-nuptial terms are as varied as relationships themselves; however, common issues covered in post-nuptial agreements include:

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• Post-divorce spousal support, retirement division (401k, IRA, Pension, CalPers, etc.);

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• Division of interest in real, personal, or intellectual property;

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• Division of interest in investments or life insurance;

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• Establishment of joint or sole pet custody;

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• Division of interest and/or control of accounts and cash on hand (bank accounts, debts, utilities), and more.

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Note: Post-nuptial agreements that intend to waive or limit post-divorce spousal support are carefully scrutinized by family law judges to ensure the spouses’ fiduciary relationship was not violated. This is especially true where prenuptial agreements purport to waive spousal support or when one of the spouses was not represented by his or her own family law attorney.

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Length of Post-nuptial Agreements

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Unless otherwise indicated, the terms in a post-nuptial agreement are valid indefinitely; however, post-nuptial agreement terms may be limited without effecting the balance of the agreement.

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For example, spousal support may be limited to an amount as multiplied by the number of years of marriage (Three thousand per month for half the length of marriage), etc. Also, despite the fact that spousal support is limited, the balance of the terms of agreement may remain in effect.

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Post-nuptial Legal Requirements

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In order for a post-nuptial agreement to be enforceable, the agreement must be in writing, voluntarily signed by both spouses, and notarized. In addition, the post-nuptial agreement must include a full disclosure of all material assets and debts owned by each spouse and the terms of the agreement must not be unconscionably one-sided or encourage divorce. Also, any agreement to waive any amount of spousal support must be agreed to in a separate document and signed by a lawyer in order to be enforceable. The lawyer who signs off on the waiver of spousal support must be independent of the lawyer who represents the other spouse. Other conditions may apply. 

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Invalidating Post-nuptial Agreements

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A post-nuptial agreement may be invalidated (rendered unenforceable) for any of the following reasons:

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• Not voluntarily signed and notarized by the spouses (not just attorneys);

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• The post-nuptial agreement attempts to predetermine the amount child custody or child support that may be ordered by a family law court (Spouses must not attempt to circumvent the court’s authority to make orders that in the best interest of the child);

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• The post-nuptial agreement includes terms that encourage divorce;

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• The post-nuptial agreement includes terms to prevents filing domestic violence restraining orders (DVRO);

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• The post-nuptial agreement is unconscionably one-sided (as determined by the court);

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• The assets and debts are not fully disclosed in the post-nuptial agreement and/or those assets and debts are not clearly transferred per the terms of the post-nuptial agreement (transmuted);

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• A spouse lacked the mental capacity to enter into the prenuptial agreement, and more.

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Note: Even an unintentional non-disclosure of assets and debts could invalidate an inter-marital agreement. Both spouses should have their own attorneys to review a post-nuptial agreement in order to avoid conflicts and ensure enforcement.

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Issues not Covered in Post-nuptial Agreements: Post-nuptial agreements do not usually apply to inexpensive gifts between spouses (i.e. clothing, inexpensive jewelry, flowers, etc.), so long as the gift is used mainly by the spouse to whom the gift is made and is not substantial in value in light of the circumstances of the marriage.

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Effect of Commingling Assets

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In the context of family law, commingling assets means that the spouses mixed their community property assets with their separate property assets.

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For example, inheritance, which is usually a separate property asset, is deposited into a joint bank account, which is usually a community property asset. Post-nuptial agreements that predetermine respective rights to community or separate property become difficult to enforce because of the commingling of assets.

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Post-nuptial Agreements and Third Parties

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An agreement to transfer real property (land) is not effective (valid) as to third party claims unless the transfer is recorded (usually with the county recorder’s office). The same is true for retirement benefits, investment distributions, assignment of rights, and more. Also, any transfer of property, which is made to defraud or avoid creditors in invalid and criminal.

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For example, if, during marriage, husband and wife draft a post-nuptial agreement so as to equally divide their respective interest in a family home after a divorce or legal separation, then the post-nuptial agreement term related to that issue has no effect on how the spouses will actually hold title to their home, unless, the change in their intended ownership of their home is actually recorded with the County Recorder’s office (i.e. record new deed reflecting change in ownership, etc.).

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Modification of Post-nuptial Agreements

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Post-nuptial agreements may be revoked or modified at any time, so long as both parties agree to revoke or modify the post-nuptial agreement and the agreement to revoke or modify meets the same legal requirements that apply to post-nuptial agreements in the first place.

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Post-Nuptial Agreement v. Marital Settlement Agreement (MSA)

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As stated, a post-nuptial agreement is a written document, drafted during marriage, that defines the rights and responsibilities of spouses as those rights and responsibilities relate to community property and community debt. A marital settlement agreement is an agreement between spouses that is entered into as part of a divorce or legal separation.

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Note: One of the best reasons to create a prenuptial or post-nuptial agreement in the first place to is to predetermine the disposition of community and separate property that is jointly, or separately, owned by and between married persons. Therefore, marital settlement agreements are uncommon in cases where a married couple previously entered into a post-nuptial agreement.

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For more information on post-nuptial agreements (inter-marital agreements), contact our divorce and family law attorneys today for a free consultation. Our attorneys have successfully handled thousands of family law cases in the Inland Empire, including the cities of Fontana, Rancho Cucamonga, Redlands, Rialto, Ontario, Chino, San Bernardino, Riverside, and more. Call today!

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909-307-2645

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