Defining the Agreements

Often couples may discuss or plan out a marriage before it happens, and some may even get to the point they want a formal contract, often called a prenuptial agreement. These are special contracts that must follow certain rules to carry any weight in a courtroom.

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.

Here are a few things to consider when thinking about whether or not to prepare a prenuptial and/or a postnuptial agreement: 

Prenuptial and postnuptial agreements are not 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’s important to remember that family courts are still very much based on rules of general fairness and equity. A judge could review a prenuptial or 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.

The biggest issues often dealt with are finances and property

The most common things that prenuptial and postnuptial agreements are used for usually relate to the finances of the couple and what property they own. Some common legal issues that show up are:

• Identifying separate property
• Limiting the creation of community property
• Limiting spousal support (in the event of divorce)
• Dividing or allocating a business
• Making financial disclosures and management decisions.

There are some limits on what the agreements can cover

Many people are unaware that certain issues can’t be decided or determined by a prenuptial or postnuptial 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) can’t be decided in any contract and must be addressed if and when the parents separate and can’t agree themselves.

There are rules you have to follow when making one of the agreements

Prenuptial and postnuptial agreements also have to be made in a certain way. There are special rules one must follow, or courts might later refuse to enforce the agreement at all.

For example, both spouses must disclose their financial situations to each other when signing one of the agreements. In addition, the agreement must have been made voluntarily by both spouses.

While an attorney is not required to draft a prenuptial or postnuptial agreement, we highly recommend hiring one, particularly to make it as strong as possible.

Are you considering a prenuptial or 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