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Key elements of postnuptial agreements

| Mar 9, 2018 | marital agreements

Prenuptial agreements are becoming more common as people start to understand the benefit of having an agreement in place that assists with protecting and separating assets in the event of a divorce. The divorce process is complex by nature, but a proper agreement can help to make it a bit easier.

For those who have already tied the knot, it is not too late; a postnuptial may be an option. There are a few key elements to know about postnuptial agreements.

Not a prenup

As the names indicate, prenuptial and postnuptial agreements are two separate processes. Though both allow couples to make an agreement as to what will happen should they get a divorce, the two represent different periods. A prenup occurs before the marriage while a postnuptial agreement happens after the marriage is official. On paper, the agreements may look identical; however, the courts do not see them as such. While prenuptial agreements are valid upon creation, the courts must approve postnuptial agreements before they become legally binding.

Provisions

If either party has special requirements, they may note them as provisions in the postnup. This helps to manage expectations and get the couple discussing issues before they develop into serious problems, which may help to avoid or decrease the chances of a divorce. Provisions may also serve as a way to discourage unfavorable acts. For example, parties may choose to include a provision that limits or decreases a divorce settlement amount if either party commits certain acts, such as infidelity.

Requirements

According to California’s marital laws, there are a few requirements to make a postnuptial agreement valid::

  • It must be in writing
  • Both parties must agree and sign willfully
  • It must be fair and inclusive

These are just a few of the main requirements. It may be beneficial to work with a knowledgeable attorney to ensure that the agreement is valid.

Several parts go into making a legally binding postnuptial agreement. Take some time to review the law and process with a knowledgeable attorney to determine if it is the path for you.