What is a Postmarital Agreement?

A Postmarital Agreement, sometimes called a Postnuptial Agreement, is an agreement created by a couple during their marriage for many of the same reasons that an engaged couple creates a Premarital Agreement: to govern their financial lives during the marriage and to determine what will happen in terms of property division and spousal support if they should divorce.   

Requirements

There is an additional enforceability hurdle for couples wishing to enter into a Postmarital Agreement: as spouses, they are subject to a set of fiduciary duties that do not exist for fiancés.   This includes the duty not to take financial advantage of the other spouse.  Because a Postmarital Agreement usually includes some circumventing of community property law, the Agreement is going to be subject to a presumption that one spouse is taking advantage of the other.

So while Postmarital Agreements do not appear to be expressly governed by California Family Law section 1600, case law has confirmed that the same rationale applies when enforcing them:  each party must sign “freely, voluntarily and intelligently.”  

In order to avoid the presumption of unfair advantage, most professionals believe that it is imperative that both spouses be represented by attorneys and that all steps be taken to show that both spouses signed the agreement freely, voluntarily and with full knowledge of rights he or she could be giving up. 

If you are interested in a pre or post nuptial agreement, you can contact me at Amanda@gordonfamilylaw.com for more information.