A postnuptial agreement is a contract between you and your spouse entered into after you get married resolving issues in your marriage. It is similar to a prenuptial agreement except it occurs after your marriage. For couples that get married without a prenuptial agreement, it is not too late to have an agreement dealing with issues of property division, management of finances, spousal support, division of a business that takes effect in case of a divorce. You can enter into a postnuptial agreement even if the marriage is going well. People grow and change over time. You can never predict if your relationship with your spouse will stay the same in the future. In a way, it is a form of planning to cover the contingency in case the marriage does not work out in the future.
If you are the spouse who is the primary breadwinner such as a Registered Nurse, a Physician, or other Professional, California community property law provides for a 50% interest to your spouse for any income earned by you during the marriage and any property acquired by you and your spouse during the marriage. Basically, your spouse has a one-half interest in your salary, earnings, and any assets you acquired during the marriage even if it was you who sweated to earn that money and even if a particular asset or bank account is under your name alone. This 50/50 division can be changed even after the marriage by ways of a postnuptial agreement.
What issues can be resolved in advance through a postnuptial agreement? You can agree on how a business or a professional practice is to be divided in case of a divorce. Through the postnuptial agreement, the division does not have to be 50/50. The agreement can provide that the business will be awarded to one spouse alone or it can provide a certain amount of buyout to the other spouse. There is a lot of flexibility as to how you want to structure this.
You can also provide for how real property is to be divided such as a house or rental property. Typically, a house purchased during the marriage is community property to be divided equally. A house purchased before the marriage is separate property but if there was a mortgage or refinancing during the marriage and the monthly mortgage payment is paid from earnings during the marriage, there could be a community interest in that separate property house which entitles your spouse to a portion of the house. This confusion can be squared away and clarified in a postnuptial agreement. You can provide for who gets the house and what buy out, if any, your spouse will get in case of a divorce.
Spousal support can also be addressed in the postnuptial agreement. A common provisions is to agree to a certain amount of spousal support which varies depending on how long the marriage was at the time the parties divorce. It is also possible to waive spousal support altogether. However, such waiver of support will be scrutinized as to unconscionability at the time of the divorce.
Other issues that can be resolved in a postnuptial agreement are division of debts and credit cards, ownership of a life insurance policy, beneficiaries to a life insurance policy, and who gets the family pet.
Since the postnuptial agreement is the first issue that can be attacked in a divorce case, it is best that each party be represented by their own attorney in negotiating the agreement. In that case, there is less likelihood that the postnuptial agreement will be found invalid since you can argue that there was no undue influence since both parties were represented by counsel. Having a postnuptial is definitely beneficial in minimizing the uncertainty in the future pertaining to your marriage and finances.
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Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, APLC. This article is not a solicitation.
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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, APLC is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected].
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