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What's a "postnup" and will it protect me in divorce?

While prenuptial agreements were relatively uncommon as little as 20 years ago, they have turned into a common practice for present-day couples before entering into marriage. Gaining popularity as another way to manage control over personal assets and debt, postnuptial agreements are becoming more widespread as well.

A prenuptial agreement is created before marriage, but a postnuptial agreement is made after a marriage occurs. It can be produced shortly after a couple marries or many years later. The validity of postnuptial agreements can come into question during a divorce, so having an attorney involved in the drafting can save you from problems later on.

Postnuptial agreement requirements

While the requirements are relatively straightforward, transmutation of property in California can be complicated. In essence, you are changing property from joint to separate, separate to joint or ownership from one spouse to another. Meeting the requirements for validity is just one of the ways to prevent the postnuptial agreement from being contested.

  • A postnuptial agreement must be written, a verbal agreement will not be considered valid.
  • The agreement must be voluntary and signed by both spouses.
  • A postnuptial agreement needs to be fair; an agreement that significantly benefits one spouse will not be considered valid.
  • The agreement requires full disclosure of each spouses assets, income, property holdings, and any debt.

If the postnuptial agreement has been drafted by your spouse's attorney, it is in your best interest to have your own attorney review the document. Your spouse's attorney cannot legally advise you; it would be a conflict of interest.

When entering into marriage, you open yourself to financial losses should the marriage end, and especially if it ends in a hostile manner. A postnuptial agreement does not ensure your personal assets will not be touched during divorce proceedings, but it can be the first step in towards protection.

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