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Photo of Professionals at McCoy Fatula, APC

How Does Your Prenup Or Postnup Hold Up In A California Divorce

On Behalf of | Oct 3, 2016 | Divorce

An increasing number of couples are recognizing the value of prenuptial and postnuptial agreements. The American Academy of Matrimonial Lawyers (AAML) has observed an increase in the use of both of these contractual arrangements, also noting that more women are asking for prenups. These arrangements are typically used to protect assets and real estate, address debt repayment, and safeguard any assets or provisions that may already be in place for children or former spouses in the event that this marriage ends. So, just how effective are these contracts when it comes to divorce?

Prenuptial Agreements and Divorce in California

A prenup allows couples to make important financial arrangements prior to getting married. If you get divorced in the future, this contract can prevent protracted legal battles. But, it can also contribute to some court battles, if it’s not drafted properly. The California Premarital Agreement Act addresses the legalities of these arrangements.

Some important factors to consider include the following.

  • You must both enter into the agreement voluntarily. This typically means that you obtained legal counsel. If not, a clear and independent waiver must exist.
  • The agreement may not be grossly unfair, favoring one party over the other.
  • The arrangement must not violate public policy. This may involve setting unreasonable standards or goals for one spouse to meet, trying to make your partner commit fraud, or encouraging divorce with monetary payments.
  • You cannot waive child support. A waiver of spousal support may not be enforceable either if this would leave you practically destitute or your weren’t aware that is what you were giving up.

California Law and Postnuptial Agreements

Like prenups, postnups cover property and asset division if your marriage ends in divorce. The difference is that this contract is entered into after you are married. The California Family Code allows for these contracts with some specific caveats. The most important one being the fiduciary duty that you and your spouse owe to one another. Your contract must reflect fair dealing and good faith. The court will look at this contract in a similar fashion to those drawn up by business partners.

It’s imperative that you both disclosed full financial information to one another when creating your postnup. If your attorney learns that your spouse hid assets, he can use this information to invalidate the agreement. Likewise, you cannot make unreasonable or extremely unfair demands. This makes it far less likely that the contract will stand up in court.

As with any contracts, when entering these agreements, it’s imperative than neither party did so under duress or coercion, and both parties must possess the mental capacity to consent. There are a number of other factors that will affect the enforceability of a prenup or postnup. Some are clear cut as a matter of law and others are more open to legal interpretation. Contact an experienced divorce lawyer to address your specific circumstances if you have one of these agreements and are considering ending your marriage.


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