Should I get a postnuptial agreement? Many couples weigh the pros and cons of obtaining a prenuptial agreement. Often, couples decide that putting their intentions in writing is the most prudent thing to do should the marriage not work out. Prenuptial agreements can protect the assets of both spouses during the divorce process and make certain aspects post divorce easier to regulate, but what happens if you get married without a prenuptial agreement? Couples often do not consider divorce or the consequences of divorce until later in the marriage, and as a result go into a marriage without any type of agreement. One way to manage expectations during the marriage and in case of a divorce is to obtain a postnuptial agreement. A postnuptial agreement is an instrument that can provide a safeguard for either spouse after the marriage takes place.
What is a Postnuptial Agreement?
This is an agreement made between the spouses regarding division of marital assets after the marriage and usually in contemplation of divorce or separation. A postnuptial agreement can address many of the same concerns as a postnuptial agreement and in some cases, even more.
Prenuptial Agreement versus Postnuptial Agreement
Although both prenuptial and postnuptial agreements are legally binding and address many of the same concerns, there are some differences. Because courts consider an agreement entered into before the marriage more valid, a prenuptial agreement can more effectively protect the individual assets that were obtained before the marriage. With a postnuptial agreement, you are deciding what happens to assets that for the most part have already become marital property because you are already married. Some examples of things addressed in a postnuptial agreement are:
- Determining which spouse owns what assets after the marriage
- Who owns recent gifts or inheritances
- The rights of each spouse’s creditors in case of a divorce
In California any property (wages, real property, personal property) acquired during the marriage is community property. That is, both spouses own the property. One of the ways a postnuptial agreement can be used is to allow individual spouses to claim certain property for themselves so that they would not be considered community property. This allows either spouse to hold the claimed property as separate property in case of a divorce. In some instances, taking the time to sit with an attorney and draft a postnuptial agreement can provide such relief for couples that they reconcile issues that brought them to consider a divorce in the first place.
Contact an Experienced Family Law Attorney For a Postnuptial Agreement
There are many reasons to consider a postnuptial agreement. An attorney can educate clients on the need for this agreements and explain how it differs from a prenuptial agreement. It is important to discuss the pros and cons of both agreements and determine which one may be right for you. If already married, an attorney can help you figure out what assets you may be able to keep for yourself after a divorce and include them in a postnuptial agreement. If you are in Sonoma County, Mendocino County or Lake County California and you are getting married soon or already married contact one of our experienced family law attorneys to discuss your options.