It is common for married California couples to accumulate more assets and wealth over the course of a marriage. If you do not have a pre-nuptial agreement, you may worry about how to protect your assets in case of divorce.
A post-nuptial agreement may be your answer. A post-nuptial is the same as a pre-nuptial agreement, only it is drafted and executed after your marriage rather than before. A valid post-nuptial agreement must be signed by both spouses and notarized to be valid.
What a post-nuptial agreement can do for you
The purpose of a post-nuptial agreement is to take the stress and uncertainty out of asset division and other financial matters in divorce. California is a community property state, meaning that community assets are divided equally in a divorce. Community assets are those acquired during marriage.
However, couples often disagree over what constitutes a community asset. Additionally, if certain factors are present, a court could conclude that an unequal asset division is a fairer resolution.
A post-nuptial agreement can help you avoid these potential problems. In addition to asset division, a post-nuptial agreement can address other issues such as debts, alimony or spousal support. Generally, agreements about child custody and child support cannot be included in a post-nuptial agreement.
Although you and your spouse may agree on the terms of a post-nuptial agreement, a court must still review and approve the agreement. Because post-nuptial agreements affect the rights couples gained by entering into marriage, they are sometimes more heavily scrutinized by a court.
Post-nuptial agreement red flags
Courts will review the agreement to ensure it is fair to both spouses and watch for signs of threats or coercion. For example, a waiver of the right to spousal support or alimony by a spouse who makes significantly less income than the other might be questioned by a court to ensure the spouse is truly giving up this right voluntarily.
Post-nuptial agreements require each spouse to fully disclose everything about their financial situation. If a court learns that one spouse has concealed or hidden assets, they could order that the agreement is unenforceable.
If you are interested in a post-nuptial agreement, or asked to sign one by your spouse, proper advice and guidance are necessary to make sure your rights are protected.