How Does a Postnup or a Prenup Affect Your California Divorce?

In the State of California, both prenuptial and postnuptial agreements are recognized, and couples facing divorce need to be aware of the role the agreement plays. Among the many factors they must consider is the fact that certain issues may render various clauses, or the whole document, unenforceable. Anyone going through a divorce must first determine whether their agreement is valid in court before they start determining its potential influence on spousal support, child custody, and property division.

What Are Prenups and Postnups?

A prenuptial agreement is a contract between a couple that they agree on before their marriage, outlining their wishes for the terms of their divorce, should it become necessary. A postnuptial agreement achieves the same goal, except that the contract is created after the couple is married. Each of these documents, when drafted properly, acts as a means to protect each of the spouse’s best interests, make a divorce go more smoothly if the marriage ends, and can save each person considerable anxiety and money.

Why Do Couples Enter Into Prenuptial and Postnuptial Agreements?

Postnuptial and prenuptial agreements are simply a wise means of protecting their assets should things take a negative turn down the road. Some of the factors and situations a couple may take into consideration when deciding whether they want a prenup or postnup include the following:

• One spouse may suffer a crushing blow to their financial assets during the marriage, while the other achieve extensive earnings.
• One of the individuals may have received a substantial inheritance or may expect to in the future.
• One or both of the parties may be concerned about their professional reputation, and these agreements can address confidentiality issues.
• Each of the spouses may be established in a successful career.
• There could be a great disparity in the debts or assets of the spouses before they are married.
• There is a very high divorce rate in the United States.

What Is Covered in a Prenup or Postnup?

During divorce proceedings, there are many terms that a couple must mutually agree upon, and if it is a contested divorce, such decisions are made in court. One of the benefits of a prenup or postnup is that the couple may avoid many of the common arguments and financial woes that often accompany divorce. The following elements are commonly included in these agreements:

• Business interests. If either of the individuals holds interest in a business, a prenuptial agreement can determine how their interest in the company and its appreciation during their marriage can be settled if the couple divorces.
• Spousal support. The contract can detail the duration of alimony, how many payments should be made, any conditions that a spouse must meet to get support, and other specifics of any alimony agreements.
• Property division. Prenups and postnups can specify how the individuals would divide marital assets such as retirement accounts, homes, and investments, as well as any debts they may have.

Other terms. Any potential issues the couple wishes to address in their contract can be added, as long as they are clear, reasonable, and not contradictory to public policy.

Questions to Consider

Here are three questions to consider about your prenup or postnup agreement.

1. Is Your Agreement Legally Enforceable?

   The very first thing a couple must determine regarding their prenup or postnup during a divorce is whether the contract can be enforced in court. The State of California looks at three primary issues when making a decision on the enforcement of a pre- or postnuptial agreement:

   • Whether each party had legal representation when they entered into the contract or if one of the two signed the agreement without sufficient knowledge of its legal implications
   • Whether the contract was grossly unfair to either party when they signed the document
   • Whether either of the individuals was coerced into signing the papers or did so under duress

   Although the courts consider these factors when determining the validity of an agreement, none of them will immediately void a prenup or postnup. If either spouse, however, can legitimately raise a question regarding the enforceability of a contract, it could have a dramatic effect on the entire divorce.

2. Can There Be Specific Clauses in a Prenup or Postnup That Are Unenforceable?

   Even if the courts decide a contract is enforceable, there may be specific provisions that it decides to disregard. For instance, the State of California does not allow engaged individuals or spouses to enter into contracts that:

   • Include non-payment of alimony in a scenario where the individual did not understand they were waiving their right to support or would be left virtually destitute
   • Predetermine child visitation or custody rights
   • Waive an individual’s right to child support

   Additionally, even though allocation of debts is a vital portion of the divorce process that can usually be covered in a prenup or postnup, restrictions do exist. For instance, creditors may be allowed to enforce joint debts against each party, despite any agreements the two individuals have made between each other in writing.

3. How Can the Enforceable Terms of an Agreement Affect a Couple’s Divorce?

   Once a determination has been made on whether any portions of a prenup or postnup are problematic, the remaining provisions are the terms of the contract that will directly affect a couple’s divorce. In most cases, the agreement covers issues such as:

   • Which person gets the home the couple resided in
   • Which person gets the retirement and insurance benefits
   • Methods for resolving conflicts related to the divorce
   • Division of community and separate property
   • Division of debts
   • Business ownership and management
   • Spousal support

   Every situation is unique, and typically, these issues are clear-cut, but that depends on how thoroughly and carefully a prenup or postnup was created. If there are any clauses that need interpretation or gaps in the details of the provisions, however, there may be issues to work out.

Trust the Legal Team With Experience

If you and your spouse or future spouse wish to create an agreement to protect your assets, or you have a contract and are facing divorce, you need an attorney with experience. The legal professionals at Bickford Blado & Botros have the knowledge to walk you through the process and ensure the best outcome. Visit our website to see how we can help.

 

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