Post-Marital Agreement. Are you buying a house or starting your business and want it to be your separate property? Make sure you and your spouse sign a post-marital agreement.

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:

1. Must be in writing. Oral agreements are not enforceable.
2. Before signing the Post-Marital Agreement both parties have to make full and fair disclosure of assets, income, and financial obligations to each other.
3. Must be executed voluntary. For example, agreements executed under duress, fraud, undue influence are unenforceable.
4. Must be fair, it means that the Post-Marital Agreement must not be unconscionable, one-sided.

Limitations:

5. Spouses cannot waive or limit their respective rights to ask for spousal support.
6. The right of a child to support may not be adversely affected by the Post-Marital Agreement.
7. 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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