If you and your spouse feel you could benefit from a prenuptial agreement but didn’t consider it until after the wedding, you may be wondering whether you can get a prenup after marriage.
You might be wondering, “Can I get a prenup after marriage?” Technically, the answer is no. However, married couples can enter into a postnuptial agreement. Under California Law, a postnuptial agreement serves basically the same function as a prenuptial agreement.
A postnup can address issues that may have arisen during the marriage, such as changes in financial circumstances or the birth of children. It’s important to note that postnuptial agreements are subject to state laws and must be drafted and executed correctly to be legally binding. You should consult with an experienced prenup attorney to ensure that your postnup is valid and enforceable.
Key Takeaways
- Postnuptial agreements replace prenups after marriage. California law requires married couples to use postnups instead of prenuptial agreements.
- Courts closely scrutinize postnups. Spouses owe each other a fiduciary duty, making fairness, disclosure, and voluntary consent essential.
- Not all terms are enforceable. Child custody, child support, and unfair or coercive provisions will be rejected by California courts.
What Is a Postnuptial Agreement?
A postnuptial agreement, also called a postnup or postmarital agreement, is a legal contract that is entered into by a married couple after they have tied the knot.
A postnup sets out the terms and conditions of property division and spousal support in the event of divorce or death. The purpose of a postnuptial agreement is to provide a plan for the financial aspects of the marriage. Otherwise, the couple would be subject to California’s default property division rules upon the death of a spouse or a divorce.
Related: What Is a Prenup, What Does It Do, and Does It Work?
Common Reasons for a Postnuptial Agreement
While many couples choose to address financial arrangements before marriage, life often brings unexpected changes. You might be asking; can you get a prenup after marriage? The answer lies in understanding the function of a postnuptial agreement. Couples opt for a postnuptial agreement for various reasons, which may include:
- Changes in financial situation. A significant change in either spouse’s financial status, such as receiving an inheritance or a substantial increase in income, might prompt the need for a postnuptial agreement to clarify how these assets will be handled in the event of a separation.
- Protecting business interests. If one or both spouses start a new business after marriage, they might want a postnuptial agreement to protect their business interests and ensure that the business is treated as separate property.
- Debt protection. To shield one spouse from the other’s debt, couples might create a postnuptial agreement to outline the responsibility for debts incurred during the marriage.
- Revising pre-existing agreements. Couples who already have a prenuptial agreement might use a postnuptial agreement to update or revise the terms based on new circumstances or mutual decisions.
- Strengthening marriage. Sometimes, the process of drafting a postnuptial agreement encourages open communication about finances and responsibilities, which can help strengthen the marriage.
If you’re considering this step, “can you get a prenup after marriage?” legally becomes the wrong question—California law requires married couples to rely on postnuptial agreements instead of prenups. While they serve a similar purpose, the legal standards and circumstances differ, making the guidance of a skilled attorney essential.
Discuss your postnuptial agreement with a qualified attorney at Cyrus Pacific Law.
Get a Free ConsultationWhat Topics Can a Postnuptial Agreement Address?
A postnuptial agreement can address a wide range of financial issues. Some topics that a postnuptial agreement can address include the following:
- How to divide property;
- Whether and how to allocate spousal support, if any;
- How to handle one spouse’s business;
- How to divide debt; and
- How family-owned assets would be handled.
It’s important to note that specific laws can limit postnuptial agreements. Additionally, courts will not enforce agreements that violate public policy or are illegal.
Related: What Clauses Are Most Important to Include in My Prenup?
What Financial Information Should You Gather Before Discussing a Postnup?
You do not need to settle every question about ownership before speaking with an attorney. Bring the information you have so the attorney can help identify what else you need to create your agreement.
Depending on your finances, helpful records may include:
- Recent statements for bank, investment, and retirement accounts;
- Deeds, mortgage statements, and records showing how you paid for a home;
- Business ownership documents, financial statements, and records of contributions to the business;
- Loan statements and information about other debts; and
- Any existing prenup, estate plan, or written agreement about property.
Tell your attorney about assets that may be difficult to value or trace. If you used money you owned before marriage toward a home purchase, for instance, records of that payment can help the attorney understand what happened. Likewise, documents showing when you acquired a business can help frame a discussion about its ownership.
Gathering records gives each spouse a better picture of the proposed agreement’s effect. It also gives your attorneys concrete information to use when drafting terms and answering your questions.
Can You Waive Spousal Support in a Postnuptial Agreement in California?
Yes, but it is risky. This is because California courts heavily scrutinize postnuptial agreements that waive alimony. This is because spouses owe each other a fiduciary duty of care to each other once they are married. In many cases, waiving spousal support may seem like a breach of that care. So, it’s best to speak to an experienced attorney when considering any waivers in your postnup.
How Do Prenuptial and Postnuptial Agreements Differ?
Both prenups and postnups serve the same purpose: to establish the terms and conditions of property division and spousal support in the event of divorce or death. Both must be in writing, signed by both parties, and entered voluntarily and without coercion. The agreement must also be fair and reasonable.
However, postnups can be more difficult to enforce than prenups because the court may be more likely to find that one party was under duress or that the agreement is not fair and reasonable. In fact, married couples owe each other a fiduciary duty under California law, which requires complete honesty, fairness, and disclosure in financial matters. Courts scrutinize postnuptial agreements more closely because of this duty. This is why it’s important to consult an experienced attorney if you’re considering a postnuptial agreement.
What a Postnuptial Agreement Can’t Cover in California
A post-marriage prenup can be a useful tool for organizing finances after marriage, but there are legal limits to what it can include. California courts will not enforce terms that go beyond what the law allows—even if both spouses agree.
First, a postnup can’t decide child custody or child support. These issues are always left to the court, based on the child’s best interests. Any attempt to control these matters in a postnup will be ignored.
Second, the agreement can’t include terms that are extremely unfair. If one spouse waives important rights without receiving anything in return, or signs the agreement under pressure, a judge may throw it out. This is especially true in California, where married couples owe each other a fiduciary duty to be honest and fair.
Finally, a post-marriage prenup can’t include terms that violate public policy or state law. That includes things like penalties for infidelity or waiving spousal duties of care.
What Are the Legal Requirements for a Postnuptial Agreement?
In California, there are several legal requirements for a postnuptial agreement to be valid and enforceable. These include:
- The agreement must be in writing;
- The parties must agree voluntarily;
- Both parties must fully disclose their assets and liabilities;
- Both parties must have legal representation;
- The agreement must be fair and reasonable; and
- The parties must sign in before a notary.
Both parties should be represented by their own legal counsel to ensure that their agreement meets all of California’s requirements.
Related: Why Using a Free Form or Template for Your California Prenuptial Agreement Is a Bad Idea
Do I Need a Lawyer for a Postnuptial Agreement?
Although it’s not legally required, it is highly recommended that both parties have independent legal representation before signing a postnuptial agreement. This is because a postnuptial agreement can have significant legal consequences.
A lawyer can make sure that the postnuptial agreement is fair and reasonable, that it is legally binding and enforceable, and that the agreement complies with all relevant state laws.
Having a lawyer also allows you to review the agreement and understand the implications of any term. A lawyer can also negotiate the terms of the agreement.
Related: Who Are the Best Prenup Lawyers in Los Angeles?
How Do You and Your Spouse Reach an Agreement?
To begin the process, you and your spouse can discuss which financial decisions you want the postnup to address. You might want to clarify business ownership, decide how to handle future savings, or discuss responsibility for a particular debt. This conversation gives each of you a chance to raise concerns before either attorney drafts terms.
After an initial discussion, an attorney can help you turn your goals into proposed terms. Your spouse typically seeks advice from their own attorney about how those terms would affect them and suggests changes. The attorneys may exchange drafts while you and your spouse decide which terms you both accept.
If your spouse objects to a provision, find out what the disagreement concerns. A spouse who agrees that a business should remain under your control might still have questions about its current value or the use of shared money to support it. You may be able to resolve the concern by discussing the particular asset and revising the proposed terms.
Both of you need room to review the financial information and make your own decisions. If you cannot agree on a term, your attorneys can explain the rights each of you has under California law and whether another arrangement would meet your goals. The process ends with an agreement only if you both choose to sign.
How Long Do You Have to Get a Postnuptial Agreement?
There is no deadline after marriage when you lose the right to create a postnuptial agreement. You can discuss a postnup months or years after the wedding. What matters is that both spouses have time to understand the proposed terms, exchange relevant financial information, and make a voluntary decision before signing.
Still, timing can affect what the agreement needs to address. Suppose you opened a business three years into your marriage and seek an agreement five years later. Your attorney would need to consider its current value and each spouse’s rights before drafting terms about future growth. Waiting may mean more assets, debts, and financial records to sort through, making for a potentially more complicated agreement, but it does not prevent you from creating one.
If you are already discussing separation, tell your attorney at the outset. Your circumstances may call for an agreement addressing separation or divorce rather than a plan for managing finances during an ongoing marriage.
How Much Does a Postnup Cost Compared to a Prenup?
There is no standard price difference. Both agreements involve decisions about financial rights, drafting, review, and often negotiations between two attorneys. The cost of either one depends more on the work required than on its name.
A postnup may take more work if you and your spouse have already combined finances, acquired property, or built a business during marriage. Your attorneys may need to review records and determine each spouse’s existing rights before writing terms that change them. A short marriage with straightforward finances may involve less work than a long marriage with several properties or disputed business interests. Changes requested during negotiations can also affect each spouse’s legal fees.
What If Your Spouse Does Not Want to Sign a Postnup?
You can propose an agreement, but your spouse must choose whether to accept its terms. Pressure to sign may create a dispute about whether the agreement was voluntary when it comes time to enforce it.
If your spouse is hesitant, ask what concerns them. They may want more information about an asset, disagree with a proposed division, or need advice from their own attorney. You can discuss different terms and give each other time to consider them. Negotiation can help you learn whether an agreement that meets both spouses’ goals is possible.
If your spouse still declines, California’s existing marital property rules apply.
Call Our Office for a Postnuptial Agreement in California
Can you get a prenup after marriage? You certainly can if you follow all of California’s requirements. However, drafting an enforceable postnuptial agreement is complicated. Fortunately, Cyrus Pacific Law can help. Our knowledgeable attorney, Daniel Galdjie, Esq., can help you draft and negotiate a postnuptial agreement to meet your marital goals.
Our office has represented many Californians in negotiating prenups and postnups. Contact us today.