When two committed individuals decide to marry it is a time for celebration. Naturally, when a couple is celebrating, they do not want to think about potential conflicts that may arise after marriage.

However, there are some issues that if not addressed prior to marriage, or shortly thereafter which may lead to very expensive and costly litigation in the future. When a couple decides to enter into a premarital agreement, they are making a decision to engage in open, transparent discussions regarding how they will treat assets, debts, and how they may address other aspects of their lives during marriage.

There are many people who misunderstand the purpose of premarital/ postmarital agreements. Often such agreements are believed to be requested because one or the other future spouse does not trust the other. However, if that is the case, such a belief could be a red flag in the relationship. A premarital or postmarital agreement is a planning tool, allowing couples to develop deeper understanding of their goals as individuals and as a couple while not in a “heated” state of mind.

Even if a couple never engages in “heated” litigation, engaging in discussions about “hot topic” issues that are the subject of a premarital or postmarital agreement can help couples understand each other’s personal goals better, allows them to develop a plans to reach those goals as individuals and as a couple and may better allow them to plan for their future.

Is a Premarital Agreement the Same as a Postmarital?

A premarital agreement happens before the marriage, while a postmarital happens at any point after it. While a postmarital deals with many of the same questions as a premarital, property that each person owned before the marriage, a postmarital also covers property, businesses, or other assets that did not exist prior to the marriage. A postmarital must be approved by the court, whereas a premarital is legal if it follows the guidelines and is signed by both parties.

Is a Postmarital as Good as a Premarital?

Both a postmarital and a premarital ideally help you avoid unnecessary arguments in the event of a divorce. They allow you and your partner to decide how you want community property and separate property to be divided in the event the relationship terminates. One of the main downsides of a postmarital agreement is that it is a little more complicated and harder to get, because the agreement must be court approved. For this reason, it may be advisable to address any issues that can be addressed in a premarital agreement, rather than a postmarital agreement.

Premarital & Postmarital Agreements

DO YOU NEED A LAWYER FOR A CALIFORNIA PREMARITAL?

While California law doesn’t mandate a lawyer for a premarital agreement, having one ensures it’s sound and defensible. Hiring an attorney to draft such an agreement is important. A knowledgeable attorney can help to avoid legal flaws in the drafting process and clarifies California’s premarital laws.

Tip for parties seeking premarital agreements: Start early for example: minimum of three months prior to scheduled wedding date, consult an attorney, and craft an agreement that results in protection for both partners.

Need help with how to get a premarital agreement? Click here to schedule an appointment for a consultation with Law and Mediation Office of Destinee Tartuffe!

POSTMARITAL AGREEMENTS (aka Postnuptial)

Each year, hundreds of thousands of couples file for divorce in California. Often the cases are highly conflicted, especially when couples do not have clear financial agreements regarding how specific assets and debts will be addressed in the event of divorce.

Couples who have set clear financial goals are significantly more likely to report higher marriage satisfaction. This is where  a postmarital agreements, can strengthen your relationship. Whether you’re managing a thriving business, inheriting family wealth, or simply setting clear financial expectations with your spouse, a postmarital agreement provides a path to peace of mind and a stronger partnership.

A postmarital agreement is a legal contract made between spouses after marriage. It can outline how assets, debts, and financial responsibilities will be managed during marriage or divided in the event of divorce.

It’s never too late to get a postmarital agreement — spouses can sign these contracts at any time during their marriage, even if separated or considering a divorce. So why haven’t you heard of a postmarital agreement? Generally, there was a prevailing thought that such agreement might be used to coerce one spouse or the other, but as the needs of spouses change and as potential litigants become more educated about options to protect specific assets, it is anticipated that they will be far more common.

Unlike premarital agreements, which are signed before marriage, postmarital agreements address events that arise later.

How are postmarital agreements different from a premarital?
Aside from the obvious before/after factors, postmarital agreements involve a bit more legal and personal red tape. Both parties must offer “consideration” when negotiating a postmarital agreement — each partner must agree to “give up” something in the event of a divorce.

In a premarital agreement, the act of getting married is sufficient consideration, but the promise to remain married is not valid consideration for a postmarital agreement. Examples of consideration include, but are not limited to:

• Waiving the right to receive maintenance, or spousal support/alimony

• Treating nonmarital property as marital

• Treating nonmarital debt as marital

Unlike a premarital agreement, a postmarital agreement will need to be reviewed by the court to determine if it is enforceable. A judge has the power to disregard or change parts of the postmarital agreement if necessary. The agreement may not be enforced if:

• One spouse coerces the other into signing a postmarital agreement against their will

• One partner misrepresented themselves or their assets when signing the postmarital

• The signed contract is so unfair it can’t be enforced in good conscience. In this case, the court may uphold parts of the agreement and change others.

Why Couples Choose Postmarital Agreements

Benefits of a Postmarital Agreement

Couples have various reasons for choosing postmarital agreements. These agreements are a great option for couples who have experienced a lot of change during their marriage. Postmarital agreements are also a viable choice for couples with children from a previous marriage, as the contracts ensure the interests of those children are secured.

Rebuilding Trust: When couples face challenges like infidelity or financial disputes, a postmarital agreement can help rebuild trust by fostering transparency and accountability.

Clarifying Financial Responsibilities: Money can often be a source of conflict in marriage. A postmarital agreement helps establish clear expectations for managing expenses, debts, and savings.

Inheritance Planning: For families with significant assets, postmarital agreements can ensure inheritances remain within the intended family lineage, providing clarity for both spouses.

Protecting Business Interests: For entrepreneurs and business owners, a postmarital agreement ensures that a company remains separate property, safeguarding its ownership and profits in case of divorce.

Protecting Assets that Were Merged Prior to Marriage:  For LGBTQ+ spouses these agreements can be very beneficial in memorializing the respective ownership interests for combined premarital assets which can reduce acrimony in dividing them in the event of a divorce. 

While there are many benefits to getting a postmarital agreement there may also be some potential disadvantages.

Cons:

·      Could cause tension in the relationship, especially in situations where trust may be at issue.

·      Risk of unenforceability if not correctly executed

California family code provisions that apply to postmarital agreements

Just as with a premarital agreement, a postmarital agreement must meet certain legal standards to be enforceable under California law:

1. Full Financial Disclosure. Both spouses must provide a complete and honest account of their financial situations, including assets, debts, and income. Concealing any information can lead to invalidation of the agreement.

2. Voluntary Agreement. The agreement must be entered into willingly, without coercion or undue pressure. Both spouses should feel free to negotiate and decline terms.

3. Independent Legal Representation (Optional but Strongly Recommended) Although not legally required, having separate attorneys ensures that both parties understand their rights and the potential consequences of the agreement. It also helps establish fairness and reduces the risk of future disputes.

Note: Spousal support provisions (including waivers or limitations) are only enforceable if both spouses had independent attorneys at the time of signing.

4. Fair and Reasonable Terms. The terms must be equitable at the time of signing. Agreements that heavily favor one spouse or are deemed “unconscionable” may be rejected by the court.

5. Written and Signed. Verbal agreements are not enforceable. The postmarital agreement must be documented in writing, signed by both spouses, and ideally notarized to strengthen its validity.

If any of the above requirements are not met, a court may declare the whole agreement or parts of it unenforceable.

What Can and Cannot Be Included in a Postmarital Agreement

Postmarital agreements are highly flexible but must stay within certain legal boundaries.

The following types of issues are typically included in a postmarital agreement:

Property Division: Specify how assets will be classified as separate or community property.

Debt Allocation: Clearly define who is responsible for existing or future debts.

Spousal Support: Include terms for alimony, such as amounts or waivers.

Business Ownership: Protect businesses and professional practices from division during divorce.

What Cannot Be Included

Child Custody or Support: Courts determine these based on the best interests of the child, regardless of any agreement.

Illegal Provisions: Any terms that violate public policy, such as unfair or coercive clauses, will not be enforced.

Unconscionable Terms: Courts may reject agreements that are overly one-sided or unfair at the time of signing.

A postmarital agreement is more than just a legal document—it’s a way to protect assets, clarify financial plans, and strengthen a marriage. By addressing financial matters proactively, you and your spouse can focus on what truly matters: building a secure and lasting partnership.

FAQs About Postmarital Agreements

Key Takeaways

·      A postmarital agreement is a contract signed after marriage that lets spouses define how assets, debts, and financial responsibilities will be handled during marriage or in the event of divorce.

·      To be enforceable in California, the agreement must be in writing, both spouses must make full financial disclosure, it must be signed voluntarily without coercion, and the terms must be fair at signing. It also requires court review and approval.

·      While postmarital agreements can cover many financial issues (like property division, business interests, and debt responsibility), they cannot legally bind child‑custody or child‑support decisions, which courts decide based on the child’s best interests.