What Is a California Postnuptial Agreement?
A California postnuptial agreement is a document married couples make to decide how their property will be split if they get divorced. It protects assets each person owned before the marriage or those that belong only to one spouse.
To be legal in California, a postnup must be written and signed by both spouses. Both people must agree to it and share all their money, debts, and property information. The terms in the postnup also have to be fair to both spouses.
Without a postnup, California defaults to community property laws (CA Fam Code § 760). These rules dictate that each spouse has an equal share in assets obtained after marriage.
A postnup is made after you’re married. To protect your property before marriage, you should make a prenuptial agreement instead.
How to Write a Postnuptial Agreement in California
A California postnuptial agreement is a binding legal document, so make sure you have included all relevant information and filled it out completely. Legal Templates’ California postnuptial agreement template can help you follow each step in the process.
1. Identify All Parties
The first step is to confirm that both people are eligible to enter into a legally binding agreement. According to CA Fam Code § 1501, that can include married minors as long as they entered a valid marriage in the jurisdiction where they were wed. Both parties should provide their names and other relevant identifying information.
2. Disclose Financial Information
For a postnuptial agreement to be considered binding in California, it should include full disclosure of all assets, debts, and financial responsibilities and obligations. Both parties should lay out that information completely.
3. Assign Property and Business Ownership
State which spouse owns any real property, financial accounts, or businesses. Include how to allocate ownership in the event of a separation or divorce.
4. Allocate Debts
In addition to determining asset distribution, include who will be responsible for any debts brought into the marriage or marital debts.
5. Decide Ownership of the Marital Home
Discuss how you wish the marital home to be divided in the event of a divorce, including whether one spouse will have the right to remain there. If you intend to sell it and divide its value, include how to allocate the proceeds.
6. Arrange Pet Custody
Use your California postnuptial agreement to determine who will take the pets in the event of a divorce. You can also document these details separately using a pet custody agreement.
7. Explain Spousal Support
The court will use the provisions in CA Fam Code § 4320 to determine spousal support if you do not have a postnuptial agreement. Factors can include the needs of each party, each person’s ability to earn an income, and their current income.
If you want to set out a different arrangement, your postnup can express it. However, the agreement must be fair to both spouses at the time of enforcement. Under CA Fam Code § 1612(c), a person must have independent counsel before agreeing to waive spousal support in a prenup. Courts would likely also uphold this same requirement in a postnup.
8. Finalize and Sign
Both spouses should review the document to ensure it accurately reflects their intentions, then sign it. California requires a postnuptial agreement to be signed before a judge or notary.
Sample California Postnuptial Agreement
View a free California postnuptial agreement to understand what it looks like. Create yours and download it in PDF or Word format.
Legal Requirements and Considerations for California Postnups
The statutes and legal principles that apply to postnuptial agreements in California are stated in the California Family Code. Most of them are in Part 5 (Marital Agreements). Make sure you are familiar with California postnuptial agreement requirements and how to ensure your agreement’s validity.
Signing Requirements
In California, for a postnup to be considered valid, both parties must sign the document in the presence of a judge or notary (In re Marriage of Friedman (2002)). This case also affirms that there must be no coercion or fraud, and the terms of the document should be fair to both parties. Simply filling out the paperwork together is not enough to ensure its validity in the event of a divorce.
Legal Representation
Neither party needs to have a lawyer for a postnuptial agreement. However, having an attorney can verify that you and your spouse both agreed voluntarily. A lawyer can also make sure the agreement offers fair provisions for both parties.
Excluded Terms
California postnuptial agreements cannot determine child support, custody, or visitation terms. These are settled in the best interests of the child at the time of a divorce or separation.
Recording
You can file marital property agreements in California with the county recorder’s office (CA Fam Code § 1502). This can help validate the document and make it easier to enforce.
Undue Influence
The concept of undue influence applies when (In re Marriage of Bonds (2000)):
- One spouse has significantly more power, including financial control, than the other; or
- One spouse pressures or coerces the other to accept an agreement that is not in their best interests.
California law requires that postnuptial agreements be entered voluntarily, with no exploitation or manipulation.
