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What is the Difference Between Prenuptial and Postnuptial Agreements in California?

Couples enter into prenuptial and postnuptial agreements to protect their separate property if they later separate or divorce. In most cases, one spouse wants such an agreement because he or she is coming into the marriage with substantial property, or because he or she is receiving substantial property during the marriage, such as in the case of receiving an inheritance. These agreements determine what property is community or marital property for division during a divorce, and what property is separate and not for division during a divorce. California Family Code § 1500 governs marital agreements in California, whether they are prenuptial or postnuptial agreements. However, there are significant differences between prenuptial and postnuptial agreements.

  1. Couples enter prenuptial agreements before their marriage and postnuptial agreements after they are already married. Ideally, couples should execute these agreements well before the wedding, and only after each has had at least a week to get independent legal advice about a final draft of the agreement. In contrast, postnuptial agreements generally occur years after the parties are married.
  2. Prenuptial agreements are generally complete, legally valid, and enforceable after the parties sign them and they are married, as long as the agreements meet all the requirements outlined in California Family Code §§ 1610 – 1617. However, postnuptial agreements are typically not legally valid until a court has considered and accepted them as valid and enforceable. As a result, although you can rely on the prenuptial agreement’s validity, if it meets all legal requirements, there is no guarantee that the court will enforce your postnuptial agreement.
  3. Both prenuptial and postnuptial agreements must meet some of the same requirements:
    1. Both spouses must fully, fairly, and reasonably disclose all assets in the agreement.
    2. Neither spouse can be forced, threatened, deceived, or pressured to sign the agreement.
    3. The agreement must be in writing and signed by both parties.
    4. The agreement must be reasonably fair and not unconscionable in favor of one party.
    5. The agreement must not violate public policy.
  4. If one party is not represented by a lawyer in executing a prenuptial agreement, the lawyer representing the other party must explain all rights and obligations that the prenuptial agreement contains and the rights that it waives, in writing. The lawyer must deliver this written explanation to the unrepresented party before the parties sign the prenuptial agreement. The unrepresented party also must sign a document acknowledging that he or she has received all the required information from the lawyer.
  5. Neither prenuptial nor postnuptial agreements can limit or waive child support rights, as these rights belong to the parties’ children, not to the parties.
  6. Premarital agreements address situations that exist before the parties are married. For example, one spouse may own real estate or other significant assets that they wish to keep separate. A spouse may wish to keep some bank accounts separate to benefit children born of a prior marriage or relationship. However, keep in mind that many of the considerations, such as gifts and inheritances, are already determined under CA community property laws to be separate property and therefore not subject to division in a divorce. Therefore, even if you don’t have a prenuptial or postnuptial agreement, you still may have other protections for specific assets under California law.
  7. On the other hand, postnuptial agreements generally address situations that did not exist at the time of the parties’ marriage. For instance, they could address one spouse unexpectedly receiving a large inheritance or one spouse staying home and caring for a special-needs child. Similarly, one spouse might want financial support assurances after the other spouse has an extramarital affair.
  8. Although both prenuptial and postnuptial agreements may address spousal support, courts may not be willing to enforce postnuptial agreements that limit or waive a spouse’s right to spousal support from the other spouse.
  9. Both prenuptial and postnuptial agreements primarily address financial matters, including real estate, personal property, bank and investment accounts, debts, and life insurance.
  10. You can only amend or revoke a prenuptial or postnuptial agreement by both spouses signing a written agreement.

Finally, keep in mind that in some cases, prenuptial agreements often have so-called “sunset clauses.” These provisions become invalid after a certain number of years of the marriage has elapsed or uipon the completion of other conditions. For example, a provision in a prenuptial agreement that attempts to waive one spouse’s right to receive spousal support from the other spouse might expire after the parties have been married for at least ten years, thus making the spouse eligible for spousal support.

LBE Law Firm offers individualized representation for individuals in various family law matters, including prenuptial and postnuptial agreements. Our office also handles general legal matters, including immigration law, bankruptcy, contracts, wills, and estates. You can reach us at +1.424.273.5501 (call, text, or WhatsApp) or via email at Contact us today to learn how we can help you with your legal matter.

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