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What is a postnuptial agreement?

Most couples are familiar with prenuptial agreements that spouses enter into before marriage. These agreements set forth terms on property division and other family law problems when a marriage ends. More recently, California married couples have begun entering postnuptial agreements.

Prenuptial agreements have been used since the middle of the last century. Engaged couples would determine their rights and responsibilities if they ever divorced. Now, married couples often enter postnuptial agreements because they did not get a prenup before their wedding. Other times, married couples are having difficulties but hold out hopes for reconciliation or want to avoid the trauma and complications of divorce.

California recognizes these agreements. However, there are important enforcement issues that must be considered for these agreements to be legally binding.

First, careful drafting is important because courts strictly follow the agreement's precise language. The agreement must clearly specify community property that may be divided, from property brought into the marriage.

Courts will not review evidence that is not contained in the postnup agreement. The spouses should clearly agree to change the property's character in the agreement, and the parties' intentions must be clearly understood.

Also, the number of executed copies should be minimized. In one case, six copies were executed but all of them did not have a correct exhibit following changes to the exhibit made after the agreements were signed. This mix-up caused legal problems regarding that agreements enforceability. It is also important to clearly specify which party will hold the original executed copy.

Other matters also deserve special considerations. It is more difficult to enforce agreements that restrict child or spousal support, for example.

Courts have also ruled that both spouses should hire separate and independent attorneys. It is important that each party have a lawyer who will protect their client's exclusive interest and who is familiar with the family law issues associated with a postnuptial agreement.

Source: Womansdivorce.com, "Avoiding mistakes when preparing a post marital agreement," Accessed April 30, 2017

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