Postnups are on the rise. And there’s data to prove it–in 2015, a survey of matrimonial lawyers confirmed that there has been an increase of nearly 50% in the request for postnups. And that was nearly ten years ago! The appetite and mood for marital agreements have only increased with each passing year. In fact, nearly 50% of millennials approve of getting a prenup. We can only assume that this feeling translates to postnups, as well. With that said, you may be wondering what a postnup is and what its pros and cons are in the state of California. Look no further– we’ve got everything you need to know on this topic. Let’s dive in.
What is a postnup?
A postnup or postnuptial agreement is a contract between two spouses. It’s a contract signed after the wedding day, at any point in the marriage. You can sign a postnup one hour after the wedding or 20 years after the wedding. It’s a way to outline finances between a couple during the marriage, in the event of divorce, and in death. Generally, postnups refer to contracts between spouses where they plan to continue the marriage. They’re only outlining these terms out of practicality. There are a few states that do not enforce postnups at all, but California is not one of them. You can get an enforceable postnup in Cali.
Requirements for a California postnup
Yes, postnups are enforceable in California, as long as you follow the rules laid out by state legislature and courts. Here’s what you need to know to create a valid and enforceable California postnup:
- Put it in writing (no oral agreements)
- Sign the contract (both parties must sign)
- Get the document notarized
- Each party must provide adequate consideration (this is a legal term which means each party must receive something in return for the agreement)
- There should not be any evidence of fraud, duress, coercion, etc. (Both spouses must voluntarily enter into the agreement)
- There must be full financial disclosure of assets, income, debts, and inheritances.
Pros of California postnups
There are plenty of advantages to getting a California postnup, so let’s discuss:
Get on the same page with your spouse
The rose-colored glasses are off, the honeymoon phase has ended, and you’re in a steady partnership with your best friend. A great way to get financially aligned with your partner is to outline everything in a postnuptial agreement.
Protect assets
Did you get an unexpected inheritance? Start a business? Buy a house? Whatever the case may be, you can get a postnup to protect your assets in any scenario life throws your way.
Protect your kids
If you have children from another relationship, you may want to consider an elective share waiver by which your new spouse waives their right to take a portion of your estate. And, spoiler alert: spouses can sometimes take a portion of your estate EVEN IF you write them out of the will in some states.
Protect against debt
Has your partner racked up a hefty credit card bill? Maybe they took on some student loans. Whatever the case may be, you can make sure you are protected against your partner’s money decisions.
They’re easy to get
Contrary to popular belief, you can get a postnup with relative ease. They’re just a contract that gets drawn up based on your needs, signed, and notarized. You don’t need to file it anywhere or file anything with a court. Easy peasy!
Streamline a divorce
If you ever do get a divorce, having a postnup handy will ensure for a smooth divorce because you will have everything decided beforehand (except for spousal support and child matters). But property division and certain other matters will be all set.
Determine other matters
California postnups can talk about more than just property division–they can also discuss taxes, businesses, inheritances, confidentiality, pets, the marital home, and more. You can pretty much customize it to make sense for you, as long as it complies with California laws and policy!
Cons of California postnups
Everything in life has some downsides, so let’s get into what those might be:
You can’t talk about spousal support in a California postnup
California law says that you cannot include clauses about spousal support in a postnuptial agreement. So, unfortunately, if you wanted to waive spousal support, you’ve missed your chance to do so. You are able to waive spousal support in a prenup, but if you’re already married, then it’s too late for a prenup.
Postnups are a newer legal concept
Postnups are a relatively newer legal concept compared to prenups, so the law is less defined on what you can and cannot do. In addition, courts take a more scrutinizing analysis on postnups if your agreement is ever challenged.
Postnups generally require legal representation
Given the fact that postnups are scrutinized more heavily by courts, it’s highly, highly recommended that you have an attorney review and sign off on your postnup. This can be more costly and time consuming.
You can’t talk about child support or child custody
If your sole purpose of getting a postnup is to work out child support or custody matters, sorry–you’re SOL. The California law says no child matters in marital contracts. This is for the court to decide in the event of a divorce and it’s an analysis of what’s the best interests of the child at the time.
Nothing good in life is free
Let’s face it–postnups aren’t free. They cost money. But spending your hard earned money to ensure it’s protected isn’t the worst way to spend it, in our opinions!
Bottom line
Postnups are useful tools for various reasons, whether you want to protect your children from a previous relationship or just get on the same page with your spouse. However, every good thing in life comes with it’s downsides. For a California postnup, that includes not being able to include spousal support or child matters in the agreement and having to hire an attorney. At the end of the day, it’s your decision, so speak with your partner and decide what makes sense for you and your relationship!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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