Postnuptial Agreement in California — What It Is and How It Works

A postnuptial agreement — also called a post nuptial agreement, marital agreement, or postnup — is a written contract between spouses executed during the marriage that addresses how assets, debts, and financial rights will be handled if the marriage ends in divorce or death. California law under Family Code §850 et seq. permits spouses to modify the character of their property and their financial rights at any time during the marriage through a written transmutation agreement. A postnuptial agreement lawyer can help you understand what is achievable and ensure the agreement is enforceable.

Postnuptial Agreement vs. Prenuptial Agreement

A prenuptial agreement California couples sign is executed before marriage; a postnuptial agreement is executed after the wedding has occurred. Both accomplish similar goals — defining how property is treated and what happens financially if the marriage ends — but California courts apply greater scrutiny to postnuptial agreements than to prenups.

The reason is the fiduciary duty. Once married, spouses owe each other the highest duty of good faith and fair dealing under Family Code §721. A postnuptial agreement executed between spouses who already owe each other this duty is examined more carefully than a prenup executed between parties who are not yet married. Courts look closely for evidence that the agreement was entered voluntarily, with full financial disclosure, and without undue influence or coercion.

What Can a Postnuptial Agreement Cover?

Under Family Code §850-852, spouses may transmute — change the character of — their community and separate property through written agreement. A postnuptial agreement can accomplish the following:

• Declare that specific assets are or shall become one spouse's separate property
• Convert separate property into community property
• Specify how property will be divided in the event of divorce
• Address spousal support obligations in the event of dissolution
• Define how specific assets — a family business, an inheritance, a real estate investment — will be treated during the marriage and at its end
• Protect children from a prior relationship's inheritance rights

Requirements for a Valid Postnuptial Agreement in California

Under Family Code §852, a transmutation of property — which is what a postnuptial agreement accomplishes — must be made in writing, signed by the spouse whose interest is adversely affected, and must expressly declare that the change in ownership is being made. Oral agreements between spouses to change property character are unenforceable regardless of how clearly both parties remember the agreement.

Beyond the technical requirements, courts evaluate whether a postnuptial agreement was truly voluntary. Factors that lead courts to question voluntariness include: one spouse being presented with the agreement during a crisis (such as when the marriage is on the verge of ending); significant pressure to sign as a condition of the marriage continuing; lack of independent legal counsel for the adversely affected spouse; inadequate financial disclosure; and unconscionable terms that heavily favor one party.

When Do Couples Use Postnuptial Agreements?

Common situations where a postnuptial agreement California couples use include: one spouse receives a significant inheritance during the marriage and wants to keep it separate; one spouse starts a business during the marriage and wants to protect it from community property claims; the parties want to formalize arrangements that were assumed but never legally documented; one spouse has significant premarital debt that the other wants to formally separate; or the couple wants to address blended family estate planning concerns that were not addressed before the wedding.

Postnuptial Agreements and Divorce Proceedings

When a marriage ends, a valid postnuptial agreement is binding on the dissolution court — the judge must apply its terms to the property covered. Courts will set aside postnuptial agreements only if the challenging spouse proves the agreement was involuntary, was based on inadequate disclosure, was unconscionable when signed, or was the product of fraud or undue influence. The burden of proof is on the challenging party.

Serving Orange County and Riverside County Clients

Furubotten Law, APC drafts and reviews postnuptial agreements for married clients throughout Orange County, Temecula, Murrieta, and surrounding communities. A postnuptial agreement is a significant legal document — it deserves careful drafting and independent review. Call (714) 795-3862 to schedule a consultation with a postnuptial agreement lawyer.