Most people have heard of prenuptial agreements where a couple has certain conditions spelled out before they get married in likelihood of a divorce. Usually, a discussion about a possible divorce down the road is something most engaged couples do not even want to consider, but it perhaps is the wisest choice, especially if one of them is bringing more income and assets into the relationship, or other unique situations.
But the often overlooked post-relationship insurance (insurance to protect assets and interests) is also a postnuptial agreement – a written contract put into stone after the couple is married – and have all the contractual law elements with five additional requirements: 1) the agreement must be written 2) must be voluntarily executed 3) must have full and fair disclosure 4) must be unconscionable (not exclusively unfair to one party) and 5) must be executed by both parties before a notary public.
Postnuptials didn’t come into play until after the 1970s as a result of the number of no-fault divorces upon the crest of legislative and statutory changes that led the American legal system to begin accepting postnuptial agreements.
Typically, there are three types of postnuptial agreements: 1) an agreement of a division of property when one spouse dies; i.e., the surviving spouse can waive certain inheritances, for example; 2) a separation agreement, usually an agreement that can minimize the time and cost of a divorce because division of property, custody or alimony has already been determined at time of separation; 3) one that affects the right of future divorce, limiting or waiving custody, division of property, etc.
California validates postnuptial agreements per California Family Code Part 5, Chapter 1, §1500 which reads: “The property rights of husband and wife prescribed by statute may be altered by a premarital agreement or other marital property agreement.” Also, §1502 says that such agreements are to be “executed and acknowledged or proved in the manner that a grant of real property is required to be executed and acknowledged.”
Postnups can be used in creative ways. Sometimes they can also save a marriage, particularly ones that are struggling financially. A couple with different money styles can breathe easier knowing that their assets are on the table and dealt with in the advent of divorce.
An experienced family law office can help you guide you through the postnuptial process.