Most people have heard of a premarital agreement—also known as a “prenuptial agreement” or “prenup”—which is a contract between two prospective spouses that takes effect when they get married.
Premarital agreements are somewhat controversial, as many consider them to focus on how to administer the couple’s assets in the unfortunate event that they get divorced. However, marital agreements generally help organize the rights and responsibilities of the parties regarding financial matters when a marriage ends, either through divorce or death.
If a couple did not enter into a premarital agreement, they still have an opportunity to enter into a postnuptial agreement after getting married.
Prenuptial Agreements Distinguished
Under California law, a “postnuptial agreement” refers to a contract entered into between spouses concerning an existing marriage. Such agreements operate similarly to premarital agreements, but the difference is that postnuptial agreements are negotiated and executed between spouses during their marriage. As a result, a contract entered into even on the day of the parties’ wedding is considered to be a postnuptial agreement if done after the wedding ceremony.
Why Get Enter into a Postnuptial Agreement?
Like prenuptial agreements, spouses can benefit from getting a postnuptial agreement for different reasons, many of which revolve around the property and financial rights of the parties. Often, a significant life event might prompt a couple to form a postnuptial agreement.
Some of the reasons couples get a postnuptial agreement include:
- Establishing clear property ownership rights and responsibilities
- Changing the character of assets from nondivisible separate property to divisible community property
- Transferring a spouse’s separate property to the other spouse as their separate property
- Modifying the terms of an existing premarital agreement
A couple might be interested in getting a postnuptial agreement regarding issues that do not involve financial rights or obligations. Generally, the provisions of a postnuptial agreement are valid unless they violate public policy or would alter legal relationships.
Restrictions on Postnuptial Agreement Terms
For the most part, the law affords a married couple broad leeway to enter into an agreement with each other. However, provisions that are considered contrary to public policy or that adversely affect the legal relations between spouses are not enforceable in court. For example, an agreement that obligates either party to engage in unlawful or criminal acts.
Agreements that are generally unenforceable for as contrary to public policy include:
- Contracts for paid companionship
- Certain limitations on spousal support
- Agreements adversely affecting child support
- Certain provisions regarding marital faithfulness
- Agreements promoting divorce
Enforcement
The provisions of a postnuptial contract can be enforced by filing a lawsuit based on a breach of the agreement’s provisions. A party defending against an enforcement lawsuit can avoid the application a postnuptial agreement’s provisions by claiming that the agreement was the product of undue influence, fraud, or other circumstances suggesting that they did not voluntarily agree to its terms.
The following evidence can be used to prove undue influence or other breaches of a fiduciary duty between spouses:
- Lies or misrepresentations to the other spouse
- Hiding assets or understating their value
- Threats of violence
- Evidence that the disadvantaged party was disabled in incapacitated
- Exchange of property for inadequate consideration in the absence of mutual assent
- Ignorance of the disadvantaged party concerning their rights
- A spouse’s habitual dependence on the other for guidance in a harmonious marriage
