What is a Postnuptial Agreement?
A postnuptial agreement (also known as a post-marital agreement or postnup) is a contract which spouses may voluntarily enter into after marriage outlining the ownership of financial assets and spousal support in the event of a divorce. This agreement can be created and signed shortly after the wedding or years later.
Why Couples Enter Into a Postnuptial Agreement?
In the event a couple divorces, a postnuptial agreement helps to alleviate tensions caused by financial concerns. A postnuptial agreement, similar to a prenuptial agreement, is used to determine how assets and property will be equitably divided in a divorce. The postnuptial agreement usually covers the following issues:
- Identifying Separate Property
- Limiting Creation of Community Property
- Limiting Spousal Support (in the event of divorce)
- Dividing and Allocating a Business
- Making Financial Disclosures and Management Decisions
- Limiting Creation of Community Property
What Are the Limits on What a Postnuptial Agreement Can Cover?
Certain issues cannot be decided or determined by a postuptial agreement, no matter how much both spouses may want it. Child support, for example, cannot be set or limited beforehand by any agreement.
Similarly, child custody (in the event of a divorce) cannot be decided in any contract and must be addressed if and when the parents separate and cannot agree amongst themselves.
Are Postnuptial Agreements Guaranteed?
No matter what an agreement says or how it was made, no agreement is ever 100% reliable. There is always a chance a judge will refuse to enforce its terms simply because it is too unfair, what the law believes to be “unconscionable.”
It is important to remember that family courts are still very much based on rules of general fairness and equity. A judge could review a postnuptial agreement at any time and decide not to follow its exact terms because it creates a situation that is too difficult for one spouse to bear.
Are you considering a postnuptial agreement?
To increase your chances of the agreement standing up in court, we highly recommend the assistance of our experienced attorneys here at the Law Office of Benjamin Kanani. Call our office today for a free consultation!
(310) 593-9592