Need Help Drafting a Postnuptial Agreement in OC?
Orange County Family Law Attorney
Just as prenuptial agreements became commonplace decades ago, postnuptial
agreements are on a path to do the same. In a recent poll by the American
Academy of Matrimonial Lawyers, more than half the attorneys surveyed
reported an increase in the number of postnuptial agreements requested
by their clients.
As with all relatively new areas of law, however, postnuptial agreements
work best when drawn up by an experienced attorney experienced. At
W. Douglas McKeague, we can provide you with our Orange County divorce lawyer who is skilled
at drafting these types of contracts.
For more information on drafting an enforceable postnuptial agreement,
contact our Orange County family law attorney today.
What are postnuptial agreements?
Postnuptial agreements are legal contracts entered into by both spouses
after they are married. These voluntary agreements usually cover the disbursement
of property and the establishment of spousal support in the event of legal
separation, divorce or death of one of the members of the marriage. They
can however, include numerous other elements including who gets the family
pet or conditions regarding adultery or substance abuse.
Postnuptial agreements must be voluntary and in writing. Any evidence of coercion on either spouse's part will nullify the
agreement. Verbal agreements are also subject to invalidation.
Many couples don't feel the financial need or have to funds to create
a prenuptial agreement when they originally marry. However life changes
such as getting more established in their career(s), accruing valuable
assets or incurring significant debt may cause them to generate a postnuptial
Examples of situations that might prompt the initiating of a postnuptial
- Purchase of a new business
- Bonuses or stock options received by one or both of the spouses
- One spouse quitting his or her job to stay at home with the children
What gets divided?
When a couple legally separates or divorces, their assets are usually divided
into two types of properties–
community and separate. Community property, in its simplest terms, is any asset acquired after
the couple is married. Separate property is an asset owned solely by a
single spouse. A postnuptial agreement usually classifies what is community
and what will be considered separate property in the event of a divorce.
Postnuptial contracts can also contain transmutation agreements. These
agreements can change the nature of one type of property to another –
community to separate or separate to community. These can apply to current
or future expected assets.
Difficulties of Postnuptial Agreements
Even though postnuptial agreements are becoming more and more common, they
can be difficult to enforce, especially if not drawn up properly. One
of the reasons they may be problematic is that California code applies
a fiduciary responsibility to each spouse once they are married. Each
spouse is presumed and expected to treat the other fairly, consider their
best interests and exercise full-disclosure. If a postnuptial agreement
is challenged, it must be proven that each spouse lived up to their fiduciary
duties when creating the contract and no undue influence was applied.
Having an accomplished lawyer draw up your postnuptial agreement gives
you the best likelihood of the contract holding up in court. Our Orange
County divorce lawyer is skilled in the particulars of
family law and the essentials of creating a postnuptial agreement.
If you're looking to compose a postnuptial agreement, get started with our
free case evaluation form!