When you were engaged to your now spouse the idea of getting a prenuptial agreement may have been the furthest thing from your mind. The wedding planning may have taken up all your attention or you may have had the notion that prenups were an unromantic sign of mistrust or lack of commitment.
Now you are married, and for various reasons, you may be concerned about your finances should you divorce. If you regret not signing a prenup before marriage you still have options. You may consider executing a postnuptial agreement.
What is a postnuptial agreement?
A postnuptial agreement — or “postnup” — is very similar to a prenuptial agreement except that it is executed after you are married but before you are separated.
Postnups, like prenups, can address financial issues in your marriage both while you are married and should you divorce.
For example, a postnup can designate assets as separate property that will not be included in the marital estate. This is important because California is considered a “community property” state when it comes to property division and divorce.
This means that, absent a prenup or postnup stating otherwise, both you and your spouse have an equal ownership interest in assets earned or obtained during your marriage and these marital or “community” assets will be subject to 50/50 division if you divorce.
Postnups can also address the issue of spousal support. For example, in a postnup you can designate how much will be paid in spousal support should you divorce, or you can even state that spousal support will not be paid at all should you divorce.
Postnups must be fair to both spouses
It is important that postnups are not so one-sided as to be unconscionable. A postnup that greatly benefits one spouse to the severe detriment of the other may not be enforceable.
If you want to execute a postnup both you and your partner will want to consult your own attorneys who can help negotiate a fair agreement and can educate you on what your rights are.