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Can You Get a Prenuptial Agreement After Marriage in California?

Writer's picture: Linda VargaLinda Varga

Can You Get a Prenuptial Agreement After Marriage in California?

Many people assume that prenuptial agreements (prenups) are only available before a couple gets married. However, if you’re already married in California and wondering whether you can still protect your assets or clarify financial matters, the good news is that you can achieve similar protection through a postnuptial agreement.


In this blog post, we’ll explore the key differences between prenuptial agreements and postnuptial agreements in California, their legal requirements, and how they can help protect your financial future.


Can You Get a Prenuptial Agreement After Marriage?

No, you cannot get a prenuptial agreement after marriage in California. By definition, a prenuptial agreement must be signed before the marriage takes place.


However, if you are already married, you have the option of creating a postnuptial agreement. A postnuptial agreement (also known as a postmarital agreement) serves a similar purpose to a prenup but is signed after the wedding.


What Is a Postnuptial Agreement in California?


A postnuptial agreement is a legal contract between spouses that outlines how assets, debts, and other financial matters will be handled in the event of a divorce or separation. Like a prenup, it can help clarify financial expectations and protect individual property.


In California, postnuptial agreements are governed by the same legal principles as prenups and must meet certain requirements to be enforceable.


Key Differences Between Prenuptial and Postnuptial Agreements


Aspect Prenuptial Agreement Postnuptial Agreement

Aspect

Prenuptial Agreement

Postnuptail Agreement

Timing

Signed before marriage

 Signed after marriage

Purpose

Clarifies financial matters in case of divorce or death

Clarifies financial matters after the marriage begins

Legal Scrutiny

Generally receives less legal scrutiny

May fact more legal scrutiny in court

Modifying Community Property Laws

Can override California’s community property laws

Can also override California's community property laws

Why Would Someone Want a Postnuptial Agreement?


There are several reasons a married couple might decide to create a postnuptial agreement:


1. Changes in Financial Circumstances


Significant financial changes, such as starting a business, receiving an inheritance, or making a large real estate purchase, may prompt couples to create a postnuptial agreement.


For example:

  • One spouse starts a business and wants to ensure it remains separate property.

  • A couple purchases real estate and wants to clarify ownership in case of divorce.

  • One spouse receives a large inheritance and wants to ensure it remains separate property.


2. Debt Protection


A postnuptial agreement can protect one spouse from being responsible for the other spouse’s debts, especially if one spouse incurs substantial debt during the marriage.


Example scenarios:

  • One spouse starts a business that requires taking on significant loans.

  • One spouse accrues credit card debt or student loans during the marriage.


3. Marital Issues or Reconciliation


Some couples create postnuptial agreements as part of a marital reconciliation process. If a marriage is on the verge of breakdown, a postnuptial agreement can provide financial clarity and peace of mind.


Example scenario:

• A couple agrees to stay together after a difficult period but wants to set clear terms in case of future separation.


4. Estate Planning


A postnuptial agreement can also be part of estate planning. It can clarify how assets will be divided upon death and ensure that family businesses, trusts, or inheritances are protected.


Are Postnuptial Agreements Enforceable in California?

Yes, postnuptial agreements are enforceable in California, but they are subject to strict legal requirements and greater scrutiny by courts compared to prenuptial agreements. To be enforceable, a postnuptial agreement must meet the following criteria:


Legal Requirements for a Postnuptial Agreement in California:


  1. Voluntary Agreement: Both spouses must sign the agreement voluntarily and without coercion.

  2. Full Financial Disclosure: Both spouses must provide complete disclosure of their assets, debts, and financial obligations.

  3. Fair and Reasonable Terms: The agreement must be fair and reasonable at the time it is signed.

  4. Separate Legal Representation: It is strongly recommended that each spouse have their own attorney to review the agreement.

  5. Written Agreement: The agreement must be in writing and signed by both parties.


How Is a Postnuptial Agreement Different from a Marital Settlement Agreement?

A postnuptial agreement is signed during the marriage and is intended to outline how financial matters will be handled during the marriage and in the event of a future divorce.


In contrast, a marital settlement agreement (MSA) is signed during a divorce and outlines the terms of property division, spousal support, and custody arrangements as part of a divorce settlement.


Common Provisions in a Postnuptial Agreement


Here are some common provisions that spouses might include in a postnuptial agreement:

  • Division of Assets: Clarifying which assets are considered community property and which are separate property.

  • Spousal Support (Alimony): Setting expectations for spousal support in the event of divorce.

  • Debt Allocation: Determining which spouse is responsible for specific debts.

  • Business Interests: Protecting business ownership and profits.

  • Inheritance and Estate Planning: Ensuring inheritances remain separate property.


Challenges to Postnuptial Agreements in California

Courts in California may scrutinize postnuptial agreements more heavily than prenuptial agreements because they are signed after the marriage begins, when the financial dynamics of the relationship are already established.


Common challenges include:

  • Coercion or duress: If one spouse claims they were pressured to sign the agreement.

  • Lack of full disclosure: If one spouse did not provide complete financial information.

  • Unfair terms: If the terms of the agreement are deemed unconscionable.


To minimize the risk of a postnuptial agreement being challenged, both spouses should have separate legal counsel and ensure the agreement is fair and reasonable.


How Much Does a Postnuptial Agreement Cost in California?


The cost of a postnuptial agreement in California typically ranges from $3,000 to $15,000, depending on the complexity of the couple’s finances and the time required to negotiate the agreement.


Factors that affect the cost:

  • Complexity of assets (businesses, real estate, investments)

  • Attorney fees (hourly rates range from $575 to $850 per hour)

  • Negotiation time between spouses


Is a Postnuptial Agreement Right for You?


A postnuptial agreement can be a valuable tool for couples in California who want to:


  • Clarify financial rights and obligations

  • Protect individual assets or businesses

  • Address debts acquired during the marriage

  • Strengthen their marriage through financial transparency

  • Prepare for future estate planning needs


If you’re already married and want to protect your assets or clarify financial matters, a postnuptial agreement might be the right choice for you.


Final Thoughts: Protect Your Finances with a Postnuptial Agreement


While you cannot get a prenuptial agreement after marriage in California, you can achieve similar protections through a postnuptial agreement. These agreements can provide peace of mind and financial security for couples looking to clarify their financial rights and obligations during marriage.


Because postnuptial agreements face greater legal scrutiny, it’s essential to work with an experienced California family law attorney to ensure your agreement is enforceable and fair.


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.

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