Many people are familiar with prenuptial agreements, and they have been discussed on our blog before. Two people who are going to be married in the future sign an agreement that dictates what each spouse will receive in the event of a divorce, issues of alimony and distribution of other assets and debts. What many people are unfamiliar with are postnuptial agreements; an agreement similar to a prenuptial agreement that is instead entered into after a couple has been married.
Many people get postnups for the same reason that they get prenups. In the event of a divorce, the separation of assets and alimony is governed by the terms of the agreement. It can take out much of the messy, emotionally and financially draining-fighting that people have come to associate with long drawn out divorces. However, prenups require that you have the foresight to plan ahead of time before marriage to avoid these issues. Postnups offer a second chance to married couples who would like to prepare themselves for the chance of separation in the future.
Some married couples choose to draw up a postnuptial agreement if they believe that their spouse is behaving recklessly or is out of control. Such an agreement may bring a spouse’s behavior back in line and protect the vulnerable spouse in cases where the financial security of that spouse is at risk.
The short answer to this question is yes, but it is a bit more complicated than that. While prenuptial agreements are generally upheld by California courts, postnuptial agreements are scrutinized at a much higher level. California courts may strike down a postnuptial agreement if the lower wage earning spouse waives their right to alimony, each party was not represented by independent counsel or the terms of the agreement are unconscionable. After the date of marriage, fiduciary duties arise between spouses, similar to those of a trustee to a beneficiary, so the burden of proving fairness at the time of enforcement is much higher than agreements before marriage.
Failure to have independent counsel represent both sides is a reason to strike down a postnuptial agreement in California. If you are interested in creating a postnuptial agreement, it is imperative that each spouse consult with their own attorney. The law offices of Charles D. Stark in Santa Rosa, CA can put decades of experience to work for you in assisting in drafting, negotiating and executing a proper postnuptial agreement. Contact us at (707) 527-9900 or visit us online.