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Postnuptial Agreements (Inter-Marital Agreements)

A postnuptial agreement, also called an intermarital agreement, is a written agreement between spouses that defines the division of their respective community or separate property rights. Postnuptial agreements are binding contracts that may materially affect a spouse's legal rights to property upon divorce, death, or legal separation. Always consult with a family law lawyer before entering into a postnuptial agreement.

Community & Separate Property

Generally speaking, all assets and debts acquired by spouses during marriage are jointly and equally shared by and between them. All assets acquired before marriage, after separation, or by gift or inheritance, by either spouse, is the separate property of the acquiring spouse. Upon divorce, death, or legal separation, spouses divide the value of community property and debt is equally (50/50); separate property is undivided and belongs to the acquired spouse. See Community Property Rights.

With postnuptial (or a prenuptial) agreements, spouses may agree to divide community and/or separate property (and debt) as they wish. In addition, a postnuptial agreement may be used to predetermine post-divorce spousal support (alimony) issues.

Postnuptial v. Prenuptial Agreements

Differences between postnuptial and prenuptial agreements include: 1) Postnuptial agreements are entered into during marriage; prenuptial agreements are entered into before marriage, 2) Prenuptial agreements are presumed to be valid; postnuptial agreements are presumed to be invalid, 3) postnuptial agreement must be entered into with the highest degree of good faith and fair dealing between the spouses because spouses are fiduciaries to each other (a legal relationship, that  is built on trust, with a duty to act good faith and fair dealing to each other); there is no fiduciary requirement when entering into a prenuptial agreement.

Reasons for Signing Postnuptial Agreements

Spouses may agree to postnuptial terms at any time during their marriage. Common reasons spouses enter into postnuptial agreements include: a spouse develops a drug or gambling addiction, a spouse overspends, a spouses is unfaithful (infidelity), a spouse wants to protect business assets or inheritance, a spouse wants to protect personal income after his or her spouse become ill, a spouse wants to protect retirement benefits, a spouse wants to avoid litigation at divorce or legal separation, and more.

Common Postnuptial Terms

Postnuptial terms are as varied as relationships themselves; however, common issues covered in postnuptial agreements include: post-divorce spousal support, retirement division (401k, IRA, Pension, CalPers, etc.), division of interest in real, personal, or intellectual property, division of interest in investments or life insurance, to establish joint or sole pet custody, division of interest and/or control of accounts and cash on hand (bank accounts, debts, utilities), and more.

Note: Postnuptial agreements that intend to waive or limit post-divorce spousal support are carefully scrutinized by family law judges to ensure the spouses’ fiduciary relationship was not violated. This is especially true where prenuptial agreements purport to waive spousal support or when one of the spouses was not represented by his or her own family law attorney.

Length of Postnuptial Agreements

Unless otherwise indicated, the terms in a postnuptial agreement are valid indefinitely; however, postnuptial agreement terms may be limited without effecting the balance of the agreement. For example, spousal support may be limited to an amount as multiplied by the number of years of marriage (Three thousand per month for half the length of marriage), etc.

Postnuptial Legal Requirements

In order for a postnuptial agreement to be enforceable, the agreement must be in writing, voluntarily signed by both spouses, and notarized. In addition, the writing must include a full disclosure of all material assets and debts of each spouse and the terms of the agreement must not be unconscionably one-sided or encourage divorce.

Invalidating Postnuptial Agreements

A postnuptial agreement may be invalidated (rendered unenforceable) for any of the following reasons: not voluntarily signed and notarized by the spouses (not just attorneys), presumes to predetermine child custody or child support, encourage divorce, prevents filing domestic violence restraining orders, is unconscionably one-sided, assets and debts are not fully disclosed and clearly transferred (transmuted), a spouse was lacked the mental capacity to enter into the prenuptial agreement, and more.

Note: Even an unintentional non-disclosure of assets and debts could invalidate a postnuptial agreement. Both spouses should have their own attorneys to review a postnuptial agreement in order to avoid conflicts and ensure enforceability.

Note: Postnuptial agreements do not usually apply to inexpensive gifts between spouses (i.e. clothing, inexpensive jewelry, flowers, etc), so long as the gift is used mainly by the spouse to whom the gift is made and is not substantial in value in light of the circumstances of the marriage.

Effect of Commingling Assets

In the context of family law, commingling assets means that the spouses mixed their community property assets with their separate property assets. For example, inheritance, which is a separate property asset, is deposited into a joint bank account, which is a community property asset. Postnuptial agreements that predetermine respective rights to community or separate property become difficult to enforce because of the commingling of assets.

Postnuptial Agreements and Third Parties

An agreement to transfer real property (land) is not effective (valid) as to third party claims unless the transfer is recorded (usually with the county recorder’s office). The same is true for retirement benefits, investment distributions, assignment of rights, and more. Also, any transfer of property, which is made to defraud or avoid creditors in invalid and criminal.

Modification of Postnuptial Agreements

Postnuptial agreements may be revoked or modified at any time, so long as both parties agree to revoke or modify the postnuptial agreement and the agreement to revoke or modify meets the same legal requirements that apply to postnuptial agreements.

For more information on post nuptial agreements, contact our divorce and family law attorneys today for a free consultation. Call today!


Updated July 17, 2021

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