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Division of Marital Assets

It’s Not Too Late: The Postnuptial (or Marital) Agreement in California

By December 10, 2009March 19th, 2024No Comments3 min read

The postnup hasn’t been in the spotlight nearly as much as its well known counterpart-the prenuptial agreement-but both agreements carry many of the same goals for California couples.  A postnup is a financial agreement created after getting married, as opposed to a prenuptial or premarital agreement that can only be entered into prior to exchanging vows.  A postnup, also called a marital agreement, is used to plan how the property you and your spouse own together or separately will be divided and distributed if there’s a separation, divorce, or death.  For some, a marital agreement can be created to address financial issues that are troubling a marriage.  On this point, a CNN article by Robert DiGiacomo, “Quit Fighting – Get a Postnuptial Agreement,” relates the story of a couple that had been married for 30 years but often fought over money.  They decided to get a postnuptial agreement, and although it didn’t solve all their problems, the two were able to ease tensions and “breathe easier” once they got a marital agreement.  While there’s no assurance that a marital agreement will help break an impasse for other marriages, for some, a postnup allows the couple to work on other issues once financial questions are resolved. 

Even if there aren’t any financial battles in your household, you may have other reasons for wanting a postnup.  Here are a few common reasons why couples get a marital agreement:

  • To change the terms of a prenuptial agreement created before getting married
  • To prevent your ownership in assets from being controlled by California’s community property laws
  • To gift property to your spouse that would otherwise be only yours or shared by both of you
  • If one or both of you has children from a prior marriage, to resolve inheritance concerns
  • To account for significant changes in finances post-marriage, e.g. a spouse earned a degree, or put his or her career on hold to raise the kids

Not all marital agreements are created equal, and not all are valid under the law.  First and foremost, under California law, spouses are held to be in a fiduciary relationship with each other.  To be enforceable, a marital agreement will have to meet stricter standards than will a prenuptial (or premarital) agreement, as California’s family laws expressly prohibit a spouse from taking any unfair advantage of the other.  Among your many obligations is the duty to fully disclose all assets and their value, as well as to disclose all income, liabilities, and any rights that will be given up if a marital agreement is signed.

As with any contract, a marital agreement can’t violate public policy, such as by taking away the family court’s ultimate authority to decide child support and custody matters.  Forcing a spouse to sign under duress, or as a result of fraud or undue influence are other clear examples of conduct that will make the contract unenforceable.  Also note that different California and federal laws apply to different types of transactions that may be covered by your marital agreement (e.g. changing rights to pension benefits or to inheritance and similar rights).  These laws must be complied with in order for your plans to be enforceable.  When writing your marital agreement, we’ll take precautions throughout the process to strengthen the contract, and to help ensure that your interests have been handled fairly.  Get your financial goals in order with a marital agreement by contacting Minella Law Group’s family law attorneys at (619) 289-7948.