Technically, the answer is no: You cannot get a prenup after you get married. 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.
Discuss your postnuptial agreement with a qualified attorney at Cyrus Pacific Law.
Get StartedWhat 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
A common reason couples get a postnup is to address changes in their financial circumstances after the marriage. For example, suppose one spouse has inherited a significant amount of money or started a business that has become successful. The couple can use a postnuptial agreement to protect those assets in the event of a divorce.
What 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?
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. This is why it’s important to consult an experienced attorney if you’re considering a postnuptial agreement.
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?
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.