top of page

Los Angeles Probate, Estate & Tax Blog

Recent developments in Probate, Estate and Tax Law.

Remote Handling of Cases 
& E-Signature of Documents

Can You Create a California Postnuptial Agreement Without a Lawyer?

Writer's picture: Linda VargaLinda Varga

Can You Create a California Postnuptial Agreement Without a Lawyer?

Couples in California often hear about prenuptial agreements as a tool to protect assets before marriage. However, many are unaware of the option to create a postnuptial agreement after marriage to achieve similar goals. A postnuptial agreement can clarify financial rights and responsibilities, protect individual assets, and prevent future disputes. But a common question arises — can you create a California postnuptial agreement without a lawyer?


The short answer is yes, you can draft a postnuptial agreement without a lawyer. However, doing so comes with significant risks. California law imposes strict requirements on postnuptial agreements, and any mistakes in the drafting or execution process could render the agreement invalid in court. This blog will cover what a postnuptial agreement is, what California law requires, and the pros and cons of creating one without legal assistance.


What Is a Postnuptial Agreement?


A postnuptial agreement (also called a “postnup”) is a legal contract created after a couple is already married. Similar to a prenuptial agreement, a postnup outlines how assets, debts, and property will be divided in the event of a divorce or death. It can also address issues such as spousal support, financial responsibilities during the marriage, and the handling of future assets.


Common Reasons Couples Create a Postnuptial Agreement


• To protect separate property acquired before or during the marriage

• To clarify financial obligations and responsibilities

• To protect inheritances or business interests

• To address changes in financial circumstances (e.g., a significant inheritance or a career change)

• To address concerns after marital issues or infidelity


Is a Postnuptial Agreement Legally Valid in California?


Yes, postnuptial agreements are legally valid in California, but they must meet specific legal requirements to be enforceable. The laws governing postnuptial agreements in California differ from those for prenuptial agreements. Postnups are generally held to higher standards of fairness and transparency because they are created after the marriage, and courts are more cautious about agreements that could unfairly impact one spouse.


California Legal Requirements for a Postnuptial Agreement


To be legally valid, a California postnuptial agreement must meet the following criteria:


  1. Full Disclosure of Assets and Debts

    Both spouses must provide a complete and honest disclosure of their financial situation, including assets, debts, income, and expenses. Failure to disclose financial information can invalidate the agreement.

  2. Voluntary Agreement

    Both parties must sign the postnuptial agreement voluntarily and without coercion. If one spouse was pressured into signing the agreement, it may be deemed invalid.

  3. Fair and Equitable Terms

    Unlike prenuptial agreements, postnuptial agreements must be fair and reasonable at the time of execution. If the terms are deemed unconscionable or unfair, a California court may refuse to enforce the agreement.

  4. Written and Signed

    The agreement must be in writing and signed by both spouses. Oral agreements are not valid.


Can You Draft a Postnuptial Agreement Without a Lawyer?


Technically, yes, you can draft a postnuptial agreement in California without a lawyer. There are even templates and online services available to assist couples in creating a postnup. However, while it may seem cost-effective to do it yourself, this approach comes with significant legal risks.


Here are some of the risks and potential pitfalls of drafting a postnuptial agreement without legal guidance:


1. The Agreement May Be Invalid in Court


California courts scrutinize postnuptial agreements closely, and any errors in the drafting or execution process can render the agreement unenforceable. For example, if the agreement is found to be unfair, if financial disclosures are incomplete, or if one spouse claims they were pressured to sign, the court may refuse to uphold it.


2. Templates May Not Comply with California Law


Online templates or DIY postnuptial agreements may not be tailored to meet the specific legal requirements of California law. Each state has unique rules governing postnuptial agreements, and a generic template may overlook key provisions necessary for enforceability in California.


3. Complex Financial Situations Require Legal Expertise


If you or your spouse have complex financial assets — such as businesses, investments, retirement accounts, or real estate — it’s essential to have a lawyer who understands how to address these assets in the agreement. Failing to address complex assets properly could result in future legal disputes.


4. Spousal Support Waivers Require Extra Care


In California, courts are particularly cautious when it comes to spousal support (alimony) waivers in postnuptial agreements. If your agreement includes a waiver of spousal support, the court will closely review whether the waiver was fair and voluntary. An improperly drafted waiver may be struck down in court.


The Benefits of Hiring a Lawyer for a Postnuptial Agreement

While you can technically create a postnuptial agreement without a lawyer, there are significant benefits to working with an experienced family law attorney:


Without a Lawyer

With a Lawyer

Higher risk of invalidation

Lower risk of invalidation

May overlook important provisions

Comprehensive and tailored to your needs

Limited knowledge of California law

Expertise in California postnup requirements

No legal guidance if challenged

Legal defense if challenged in court

An attorney can:


  • Ensure the agreement complies with California law

  • Help you with full financial disclosure

  • Provide advice on fair and enforceable terms

  • Protect your rights if the agreement is ever challenged


Can a Postnuptial Agreement Be Contested?


Yes, even a valid postnuptial agreement can be contested in California probate or family court. Common grounds for contesting a postnuptial agreement include:


  • Fraud or misrepresentation

  • Failure to disclose assets

  • Coercion or duress

  • Unfair or unconscionable terms


To reduce the risk of the agreement being contested, it’s critical to follow California’s legal requirements and consult a legal professional.


Should You Use a Lawyer for a California Postnuptial Agreement?


While it is possible to draft a postnuptial agreement without a lawyer, it is generally not advisable. California law is complex, and postnuptial agreements are subject to strict scrutiny in court. The cost of hiring a lawyer upfront can save you significant legal fees and emotional stress in the future if the agreement is ever challenged.


When You Should Definitely Use a Lawyer


You should consider hiring a lawyer if:

  • You have complex financial assets (businesses, real estate, investments).

  • The agreement includes a spousal support waiver.

  • You want to protect children from a prior marriage.

  • There has been infidelity or marital issues.

  • There is a significant income disparity between spouses.


Conclusion


While it is legally possible to draft a postnuptial agreement in California without a lawyer, doing so can be risky. California courts hold postnuptial agreements to high legal standards, and mistakes in the drafting process can lead to the agreement being invalidated in court. If you’re considering a postnuptial agreement to protect your financial interests, it’s strongly recommended to consult with an experienced family law attorney to ensure the agreement is legally enforceable and fair.


Need Help Drafting a California Postnuptial Agreement?


Our team of experienced California family law attorneys can help you draft a comprehensive and enforceable postnuptial agreement that protects your rights and assets. Contact us today to schedule a consultation.


Contact the top-rated California trust and probate attorneys Moravec, Varga & Mooney today to schedule a telephonic consultation. Have questions, call (626) 460-1763 or email LV@MoravecsLaw.com.


Southern California Probate Lawyer Serving all counties in California, including Los Angeles, Riverside, San Bernardino, Sacramento, Santa Cruz & Beyond.

18 views

Comments


© Moravec Varga & Mooney

MasterCard
VISA
American Express
Discover
  • Facebook Social Icon
bottom of page