Most people have heard of a prenup but what about a postnup? Unlike a prenuptial (or premarital) agreement, which is a contract entered into before marriage by two persons intending to marry, and which is covered by California Family Code section 1615, a postnuptial agreement is a contract entered into by persons who are already married and who wish to set forth such things as possible changes to the character of community and separate property and other rights and obligations.
The parties to a postnuptial agreement can agree that the contract extends retroactively to the date of their marriage or at a particular date, such as the current date the agreement is signed going forward.
In the agreement, the parties can change the character of their community property (Family Code sections 760 and 771), which is all property and debts acquired during the marriage, except for those that may be exclusively separate property (Family Code section 770), like inheritances and gifts.
What a Postnuptial Agreement Entails
Like a prenuptial agreement, in a postnuptial agreement, the parties can also deal with issues such as spousal support, the restructuring of property ownership, inheritance rights, death benefits, retirement benefits, health insurance, and even payment of household expenses. Often this type of agreement also identifies each party as having exclusive separate property rights to their respective incomes and any purchases or profits made from this separate income, which ordinarily would be considered community property in California.
What a Postnuptial Agreement Does Not Entail
One thing that neither type of agreement can cover, however, is issues related to living or unborn children and child support, prohibited specifically under Family Code section 1612(b). In actual practice in the courts of California, legal professionals know that custody and visitation matters are also not to be included in a prenuptial or postnuptial agreements.
In order for a postnuptial agreement to be valid and enforceable, the parties must make full disclosures to one another of their assets, debts, income, and obligations.
Since married parties owe one another the highest duty under the law with regard to their respective fiduciary obligations (Family Code sections 720 and 721), they must each be fully aware of the entire circumstances of the marriage and all that the community (meaning the married couple) have acquired from the date of marriage to the date of the agreement, whether assets or debts or obligations of any kind.
Because a postnuptial agreement is not provided for in the Family Code like a prenuptial agreement is, it is very important that this contract be written carefully and that all fiduciary obligations are met by both parties during its drafting and upon its execution.
Hiring an experienced family law attorney who can make sure the agreement contains appropriate language, any necessary waivers, and meets the current conditions of the law about such agreements is an important first step in the process of getting a postnuptial agreement into place.