POST-MARITAL AGREEMENT/ POST-NUPTIAL AGREEMENT
What is a Post-Marital Agreement?
The Post-Marital Agreement also known as a Post-Nuptial Agreement (Postnup) means an agreement between spouses regarding property.
Family Code Section 1620 states, “Except as otherwise provided by law, spouses cannot, by a contract with each other, alter their legal relations, except as to property.”
The same way as a Premarital Agreement (Prenuptial Agreement or Prenup) the Post-Marital Agreement (Post-Nuptial Agreement or Postnup) describes what will happen with spouses’ assets and debts should the marriage end in divorce or legal separation.
To be valid the Post-Marital Agreement (Post-Nuptial Agreement or Postnup) must meet specific laws and regulations:
- Must be in writing. Oral agreements are not enforceable.
- Before signing the Post-Marital Agreement both parties have to make full and fair disclosure of assets, income, and financial obligations to each other.
- Must be executed voluntary. For example, agreements executed under duress, fraud, undue influence are unenforceable.
- Must be fair, it means that the Post-Marital Agreement must not be unconscionable, one-sided.
- Spouses cannot waive or limit their respective rights to ask for spousal support.
- The right of a child to support may not be adversely affected by the Post-Marital Agreement.
- Spouses cannot contract to terms which are in violation of public policy or a statute imposing a criminal penalty.
Main points to follow:
- Hire an attorney.
- If you are an initiator of having a Post-Marital Agreement with your spouse.
- Make sure your spouse has an attorney.
- Use the following forms to formally disclose your assets, income, and financial obligations to your spouse:
- Income and Expense Declaration (form FL-150), and
- Schedule of Assets and Debts (forms FL-142).
- Make sure your spouse formally discloses her/his assets, income, and financial obligations to you.
- If English is not your/your spouse’s native language, make sure your/your spouse’s attorney speaks your/your spouse’s native language.
- Your attorneys will take care of other nuances and formalities of the Post-Marital Agreement.
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