couple considering a postnuptial agreement
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By Dorit Goikhman
Founding Attorney

A postnuptial agreement is a legally binding document that married couples create to settle matters of finances, assets, and potential spousal support in the event of a separation or divorce. It may also be referred to as a postmarital agreement. Unlike a prenuptial agreement, which is drafted before marriage, a postnuptial agreement is crafted after a couple has already wed. In recent years, these agreements have gained popularity as couples recognize the value of addressing financial concerns and responsibilities during the marriage, helping to clarify expectations and avoid potential conflicts.

The Difference Between Prenuptial and Postnuptial Agreements

Prenuptial and postnuptial agreements both serve the purpose of defining the division of assets and responsibilities in a relationship, but they differ in their timing and sometimes their motivations. A prenuptial agreement is entered into before marriage, allowing couples to set financial and property rights parameters in advance of their union. In contrast, a postnuptial agreement is crafted after the couple is already married, often in response to changes or challenges faced during the course of the marriage. While both agreements can be vital tools in safeguarding individual interests, the postnuptial agreement reflects the evolving dynamics and needs of an ongoing marital relationship.

Top Reasons to Consider a Postnuptial Agreement

  • Financial Transparency: Financial transparency refers to the open and honest disclosure of one’s financial status, including assets, debts, income, and expenses. It promotes trust in personal and professional relationships, ensuring that all parties have a clear understanding of the financial landscape. Embracing financial transparency can prevent misunderstandings and disputes, especially in contexts like marriage or business partnerships, where fiscal clarity is essential for mutual growth and harmony.
  • Changes in Wealth or Debt: Changes in wealth or debt can significantly impact an individual’s or couple’s financial situation. Whether due to an inheritance, business growth, investments, or unexpected liabilities, these shifts can affect one’s financial security and future planning. Addressing and adapting to these changes is crucial to maintain financial balance, especially in marital situations, as it can influence decisions about expenditures, investments, and asset allocation.
  • Child-Related Considerations: Child-related considerations play a pivotal role in many legal and financial discussions within a family context. These considerations encompass areas like education, upbringing, healthcare, and future financial support. As circumstances and priorities shift over time, couples often revisit these decisions to ensure that their arrangements still serve the best interests of their children. 
  • Protection from Liabilities: Protection from liabilities is a crucial consideration, especially in financial and legal contexts. By safeguarding one’s assets and interests, individuals can prevent being held responsible for debts or obligations incurred by another party. For couples, especially, ensuring protection from each other’s potential future debts or business-related liabilities can provide peace of mind and financial security. It emphasizes the importance of distinct delineations between personal and shared responsibilities.
  • Clarification of Separate vs. Marital Property: Clarifying the distinction between separate and marital property is essential for couples, both for current understanding and future contingencies. In California, all assets and debts acquired during the course of the marriage are considered to be marital property. In contrast, separate property refers to assets and debts that one spouse brings into the marriage or receives by gift or inheritance during the marriage. Making clear distinctions can help prevent disputes and ensure a smoother process should the couple ever decide to part ways or in the event of one partner’s passing.
  • Protecting Business Assets: A postnuptial or postmarital agreement can be an invaluable tool in protecting business assets in the event of divorce, separation, or even death. Many people are surprised to learn that the default laws of California may create a community interest in your small business, which means that your spouse may have rights to your business in the event of a divorce, separation, or death. A properly drafted postnuptial agreement can protect your business in such an event. 
  • Changing the Character of Property: California is a community property state. This means that, once married, your property and debts will be characterized as either community property or separate property. If you would like to change the character of your property from community to separate or vice versa, the best way to accomplish this is by entering into a postnuptial agreement. 

How to Approach Your Spouse About a Postnuptial Agreement

Approaching your spouse about a postnuptial agreement requires sensitivity, as it can be a delicate subject for many. It’s crucial to lead with the understanding that this agreement is not a reflection of mistrust or doubts about the marriage’s longevity. Instead, emphasize that it’s a tool for mutual clarity and protection, much like an insurance policy, aiming to address both parties’ concerns and ensure fairness. Reinforcing the notion that the agreement is for both partners’ benefit and offers a platform for open financial communication can set a positive tone for the discussion.

If You’re Considering a Postnuptial Agreement

Postnuptial agreements offer couples a means of clarity and protection within their marital relationship. They not only establish a framework for current financial understanding but also prepare for unforeseen future scenarios. If you’re considering such an agreement or have any questions, don’t hesitate to reach out to California family law attorney Dorit Goikhman for expert guidance and support. With her extensive experience, she will guide you through the process, ensuring your rights and interests are safeguarded. To schedule a complimentary Zoom consultation, click here

About the Author
Dorit L. Goikhman is a licensed attorney, with years of experience representing clients throughout Central California in business, real estate, and family matters. After witnessing numerous clients spend fortunes and waste years of their lives in litigation, Dorit became interested in mediation and all that it has to offer. Dorit is committed in helping parties work together to obtain a mutually acceptable solution to their disputes at a fair price. Her approach is to keep things simple, confidential, and efficient with the goal of preserving the parties’ assets, reputations, and sanity. If you have any questions regarding this blog, you can contact Dorit here.