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We exclusively draft and review California Prenuptial & Postnuptial Agreements.
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Get Informed – Commonly addressed areas in Postnuptial Agreements
- Property – What property is held jointly and/or individually
- Debt – Who is responsible for paying off debt? Is debt in joint name? How can debt be repaid and what are the priorities in repayment of debt?
- Earnings – How are earnings allocated? Is there an inequity in how the parties spend or save earnings? Should there be an agreed upon percentage of earnings that each person is able to spend/save? Are both contributing to the family’s income to the best of his or her ability?
- Roles – What is the role of the spouse, if any, in a business now or in the future?
- Business – How should a business be disposed of in the event of divorce, disability or death?
- Remarriage with Children to consider – How are monies divided in a blended family? How much support should be given to children from previous marriages? What are the ages and needs of the children? What monies should be used to pay for these needs? Are there children with “special needs?”
- Health – What happens if one spouse falls ill or becomes disabled? Have you considered purchasing long term health care insurance, disability insurance, have you executed a health care proxy or power of attorney?
- Death – What protection do you have in the event of one another’s death? Do you have life insurance for the other; updated wills; considered estate planning?
Stay Legal – What factors are looked at to determine if a Postnuptial Agreement is valid?
- Does it include fairand open financial disclosure of all assets and liabilities?
- Was the agreement fair, when each spouse’s contribution to the marriage has been considered?
- Was the Postnuptial Agreement executed in contemplation of divorce or legal separation, versus an attempt to reconcile the marriage?
- Were both Parties represented by attorneys?
- Was the Postnuptial Agreement process rushed, versus being negotiated, considered, and understood?
- Was there any coercion or duress during the process of drafting the postnuptial agreement?
- Was the Postnuptial Agreement properly executed?
What is the difference between a Prenuptial and Postnuptial Agreement?
There is little difference between a Prenuptial and Postnuptial Agreement in terms of what can be protected – both agreements address finances, alimony, retirement and other matters.
However, there is a big difference in that is there is a fiduciary or confidential relationship the spouses have to one another, created by the marriage. (You can read about this in Family Code §§721(b) and 1100(c)). During marriage, each spouse becomes a fiduciary to the other. As such, each spouse has a duty of highest good faith and fair dealing with the other spouse, and neither spouse can take any unfair advantage of the other. Because of this duty of loyalty to one, the courts will apply more scrutiny to Postnuptial Agreements. It is extremely important to work with anattorney who has significant experience in drafting PostnuptialAgreements.
However, there is a big difference in that is there is a fiduciary or confidential relationship the spouses have to one another, created by the marriage. (You can read about this in Family Code §§721(b) and 1100(c)). During marriage, each spouse becomes a fiduciary to the other. As such, each spouse has a duty of highest good faith and fair dealing with the other spouse, and neither spouse can take any unfair advantage of the other. Because of this duty of loyalty to one, the courts will apply more scrutiny to Postnuptial Agreements. It is extremely important to work with anattorney who has significant experience in drafting PostnuptialAgreements.
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