A Postnuptial Agreement is an agreement between two persons who are married to each other about how they will hold title to property in the future, and how they will hold the property they presently own. It also sets out how their property will be divided in the event the marriage ends. It can also address for how spousal support, if any, will be decided in the event the marriage ends in divorce.
This type of provision is new to California and the limits are still being defined by the courts. Until recently it was not possible to contractually agree on spousal support obligations or waive them under California law. It is still not possible to decide issues relating to custody of children or the support of children in an agreement that are not subject to court approval. A Postnuptial Agreement is similar to a Premarital Agreement, but is entered into after marriage rather than before marriage. Because of the duties the law requires of married persons towards each other is different than the duties unmarried parties have towards each other, how the agreement is interpreted and enforced may be different. It is much preferable to enter into an agreement prior to marriage, but an agreement after marriage is better than no agreement at all. Because of the complexity of California law dealing with how property is divided after a divorce, if one of the parties to a marriage has a pre marital business, or any significant assets, or substantial income, it is imperative that a premarital or postnuptial agreement be negotiated and signed.
By doing so, it will not only allow the parties to become informed about how marriage can affect their estates, but can save a small fortune in legal fees in the event of a divorce. Because each person’s situation is unique, and the law complex and difficult, a premarital or postnuptial agreement should be tailored to each parties particular circumstances and prepared by a qualified attorney.
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