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Postnuptial
What is a Postnuptial Agreement?
A Postnuptial (marital) Agreement is a voluntary marriage contract between spouses that is created after their wedding.
A Postnuptial Agreement can be used to help resolve issues in marriage by removing a source of disagreement over finances, assets, inheritances, children, etc.
Others, intended to enter into a Prenuptial Agreement but ran out of time before the wedding and want to address financial and legal issues in the event of a divorce or a death — what will be done with the house, investments, 401K, or other such marital assets.
The Postnuptial Agreement can be used to protect one or two specific areas, such spousal support, how the marital home will be split, debt, guaranteed beneficiary of a life insurance policy during the marriage, or even what happens to the family pet.
Why a Postnuptial Agreement?
Reason 1
In California, it is assumed by law that half of all earnings, property accumulated from those earnings, as well as appreciation of assets during marriage, belong to your spouse upon divorce or death. A Postnuptial Agreement can accommodate changes to those entitlements.
Reason 2
A common reason for drafting the contract after marriage is a change in economic circumstances — one spouse may be completing a valuable degree, there may have been a change in the value of (or participation in) the family business, or there may be a change in the extended family.
Reason 3
A Postnuptial Agreement can aid in the process of reconciliation after a period of marital conflict. Once the agreement is in place to address financial arrangements, the couple can concentrate on other issues.
Reason 4
Some laws regarding marital property or the marital home are not very clear and each party’s ownership can depend on a number of different factors. This cause’s considerable uncertainty as to who will own what if a divorce occurs. A Postnuptial Agreement will eliminate this uncertainty.
Key Benefits of a Postnuptial Agreement
- Save Your Marriage – help resolve issues in marriage by removing a source of disagreement over finances, assets, inheritances, children, etc.
- Peace of Mind – California law is complex and may have unintended and surprising consequences. add certainty to what your assets and obligations are.
- Protect Your Assets – secure what is important to you
- Sound Decisions – make rational financial decisions at a time whenyour judgment is clear and uncompromised.
- Flexible – personalize the postnuptial agreement to meet your needs
- Emotional and Money Savings – save time, emotions, and costly legal battles and attorneys’ fees
- Amendable – you are not locked into the terms of the Postnuptial Agreement, but rather can modify it with life changing events
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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.
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