Postnuptial Agreements in California: Can You Change the Rules After You’re Already Married?
What Happens When Your Financial Situation Changes After "I Do"?
You're already married, but circumstances have shifted. Maybe one of you started a business. Perhaps you received a large inheritance. Or maybe trust issues have surfaced, and you want financial clarity. You're wondering: can you create an agreement about property and finances after you're already married?
The answer is yes—through something called a postnuptial agreement. But before you assume it's just like a prenup you forgot to sign, you need to understand that postnuptial agreements operate under different rules and face unique challenges in California.
What Exactly Is a Postnuptial Agreement?
A postnuptial agreement is a legal contract signed by spouses during their marriage that outlines how they'll handle financial matters, property division, and spousal support if they divorce or separate. Think of it as a prenuptial agreement's cousin—they serve similar purposes but have different legal requirements and face different levels of court scrutiny.
Unlike prenups, which are signed before marriage when couples are presumably dealing at arm's length, postnuptial agreements are created when spouses already owe each other fiduciary duties. This means California courts examine these agreements much more carefully.
Why Do Married Couples Create Postnuptial Agreements?
Business Ownership Changes You started a company after getting married, and it's growing rapidly. Without a postnuptial agreement, your spouse automatically owns 50% of that business under California's community property laws. A postnup can clarify ownership and protect the business from being divided in a potential divorce.
Inheritance Protection You inherited money or property from a family member and want to ensure it remains your separate property. While inheritances are typically separate property, they can become mixed with community assets over time. A postnuptial agreement can provide clear protection.
Rebuilding Trust After Financial Betrayal One spouse discovered the other was hiding debts, spending recklessly, or making poor financial decisions. A postnup can establish boundaries and consequences for future financial behavior.
Career Sacrifices and Support One spouse is giving up their career to support the other's education or business venture. A postnuptial agreement can ensure the sacrificing spouse receives compensation if the marriage ends.
Blended Family Considerations Both spouses have children from previous relationships and want to ensure certain assets go to their respective children rather than being treated as community property.
The Unique Challenges Postnuptial Agreements Face
Higher Court Scrutiny California courts examine postnuptial agreements with intense scrutiny because spouses have fiduciary duties to each other. Unlike strangers negotiating a prenup, married couples are legally required to act in each other's best interests. This makes it harder to prove the agreement was fair and voluntary. Family Code § 721 outlines this obligation in detail.
Presumption of Undue Influence Courts presume that the stronger spouse may have pressured or manipulated the weaker spouse into signing. This presumption must be overcome with clear evidence that both parties entered the agreement freely and with full understanding.
Ongoing Relationship Dynamics Power imbalances that exist in marriage—such as one spouse controlling finances or having significantly more income—can make courts question whether the agreement was truly voluntary.
Burden of Proof The spouse seeking to enforce the postnuptial agreement typically bears the burden of proving it was entered into fairly, voluntarily, and with full disclosure.
What Makes a Postnuptial Agreement Valid in California?
Full Financial Disclosure Both spouses must provide complete and honest disclosure of their assets, debts, income, and financial obligations. Hiding information can invalidate the entire agreement.
Independent Legal Representation While not legally required, having separate attorneys for each spouse significantly strengthens the agreement's validity. It shows both parties understood their rights and received independent advice.
Voluntary Agreement The agreement must be entered into freely, without coercion, threats, or pressure. Courts look for evidence that both spouses had adequate time to consider the terms and seek advice.
Fair and Reasonable Terms The agreement cannot be unconscionably unfair to either spouse. While parties can agree to unequal divisions, the terms must be reasonable under the circumstances.
Proper Execution The agreement must be in writing and signed by both parties. Verbal agreements are not enforceable.
Common Mistakes That Invalidate Postnuptial Agreements
Signing Under Pressure Presenting the agreement during a crisis, threatening divorce if the other spouse doesn't sign, or setting unreasonable deadlines can invalidate the agreement.
Inadequate Disclosure Failing to disclose assets, undervaluing property, or hiding debts gives the other spouse grounds to challenge the agreement later.
One-Sided Terms Agreements that leave one spouse with virtually nothing or create extreme hardship are more likely to be overturned by courts.
Poor Timing Signing shortly before filing for divorce or during marriage counseling can raise questions about the agreement's legitimacy.
Generic Language Using template agreements without customizing them for your specific situation often creates ambiguities that courts must resolve.
How Postnuptial Agreements Differ from Prenups
Legal Standard Prenups are evaluated under contract law principles, while postnups face the higher standard of fiduciary duty. Courts are more suspicious of postnuptial agreements.
Timing Pressures Prenups are often signed under time pressure before weddings, but postnups can be created anytime during marriage when both parties are ready.
Relationship Dynamics Prenup negotiations happen between two independent people planning to marry. Postnup discussions occur within an existing marriage with established dynamics and dependencies.
Court Enforcement While both face potential challenges, postnuptial agreements encounter more skeptical courts and stricter enforcement standards.
What Can and Cannot Be Included
Valid Provisions
- Property division in case of divorce
- Spousal support terms and limitations
- Treatment of business interests
- Inheritance protection
- Debt responsibility allocation
- Asset protection strategies
Invalid Provisions
- Child custody arrangements (courts decide based on best interests)
- Child support modifications (cannot be waived or predetermined)
- Illegal activities or arrangements
- Terms that encourage divorce
- Provisions violating public policy
When Courts Refuse to Enforce Postnuptial Agreements
Unconscionable Terms If the agreement is so unfair that it shocks the conscience, courts will refuse enforcement. This often happens when one spouse gets everything while the other gets nothing.
Fraud or Misrepresentation Lying about assets, income, or debts can void the entire agreement. Courts require honest dealings between spouses.
Duress or Coercion Threats, ultimatums, or emotional manipulation can invalidate the agreement. The signing must be truly voluntary.
Changed Circumstances If circumstances change dramatically since signing, courts may refuse to enforce terms that would cause severe hardship.
The Cost of Getting It Wrong
Expensive Litigation Invalid postnuptial agreements often lead to costly court battles during divorce proceedings. You may end up spending more on legal fees than the agreement was designed to protect.
Lost Asset Protection If the agreement fails, you lose the financial protections you thought you had. Business interests, inheritances, and other assets become subject to community property division.
Emotional Toll Fighting over an invalid agreement during divorce adds stress and conflict to an already difficult situation.
Time Delays Challenging or defending a postnuptial agreement can significantly lengthen divorce proceedings.
Your Next Steps: Getting Professional Guidance
Creating a valid postnuptial agreement requires careful planning, full disclosure, and precise legal drafting. The stakes are too high and the legal requirements too complex to handle without experienced legal counsel.
If you're considering a postnuptial agreement, or if your spouse has proposed one, you need attorneys who understand California's stringent requirements and can protect your interests while ensuring the agreement will hold up in court.
Don't risk your financial security on do-it-yourself documents or generic templates. The unique challenges facing postnuptial agreements demand professional expertise and careful attention to detail.
Contact Ghazi Law Group today to discuss your postnuptial agreement needs.
Our experienced California family law attorneys understand the complexities of marital agreements and can help you create a valid, enforceable postnuptial agreement that protects your interests and stands up to court scrutiny.
Call (818) 839-6644 or email contact@ghazilawgroup.com to schedule your consultation.
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