​When would a postnuptial agreement be necessary?

A prenuptial agreement is a very powerful document to have as it outlines many of the details related to an upcoming marriage as well as clarifies the details of the items such as child custody, support, and the distribution of assets in the event of a divorce.   While the image of an engaged couple is one of young people starting out in life, trying to save money and buy a house, this is not always the case.  Quite often, people are getting married a second or even a third time later in life.  They are more established and have accumulated assets, property, businesses, and responsibilities such as supporting kids from a previous marriage.  All of these details can cause complications in a marriage, especially if that marriage does eventually end in divorce, or even with the death of a spouse.

While a prenuptial agreement is not an easy subject to bring up nor does it match the excitement and romance of an upcoming wedding, it is necessary to clarify positions, finances and expectations going into a marriage.

Prenuptial agreements are not just for older people who are well-established.  Any couple entering into a marriage can benefit from the idea of clearing up details and issues prior to the “I-dos”.   If one spouse agrees to support the other through school or if one spouse decides to put a job or career on hold to take care of the house and kids, then a prenuptial agreement can protect that person as well.

It is preferable that an agreement be put in place prior to a wedding.  If the details of the agreement cannot be worked out, there is still an opportunity to either postpone or call off the wedding. 
 
After the wedding, an agreement is still possible.  This is called a postnuptial agreement.  A postnuptial agreement is more difficult to agree to due to the sensitivity of the relationship and details being discussed.  It can be hard to be a happily married couple and still be put into an adversarial posture with your spouse.  During the negotiations, one main issue is that if an agreement cannot be made, the couple is still legally married to each other.  This can cause tension in the marriage.

Also, as a married couple you have a fiduciary responsibility to each other.  This responsibility is discussed on our website.
When would it be necessary to enter into a postnuptial agreement.

Even if you thought that a prenuptial agreement was not necessary, things do change in life and in a marriage to the point where you may decide that details regarding status or finances need to be clarified.

If one spouse all of a sudden comes into a significant amount of money through inheritance, or even winnings or through a new job or promotion, you may want to make some decisions regarding how assets are distributed in the event of a divorce.

It is not uncommon for people to be part of extended families and families of divorce.  People may have kids or other relations that they are responsible for or feel that they will need to look after or support.  There may also be relationships that predate your wedding, such as a business partnership.  When you got married, you might not have thought about these relationships and how they could affect your current marriage.  Issues do arise that can cause strife in a family.  A postnuptial agreement can lay out the details of these relationships and what people can expect when it comes to responsibilities and expectations.

We mentioned the possibility of one spouse supporting the other due to school or one spouse choosing to put a career on hold to take care of the household. These are details that can also change throughout a marriage, and can also cause stress or expectations.  The spouse that made the sacrifice to their career may expect some level of compensation for putting their career on hold for the sake of the family if the marriage does end in divorce.

California is a community property state, meaning that assets are assumed to be split evenly.  We discussed that on our website.
A postnuptial agreement can also clarify what assets may or may not be included in or counted as community property or it may specifically call out what property or assets will be given to either spouse in the event of a divorce.

A marriage is not static.  Situations and circumstances change regularly.   While it is not romantic, there are legal issues that need to be discussed and agreed upon.  These agreements are extremely beneficial as it reduces the stress of the individuals knowing that they can start their new lives without worrying about the “what-ifs” of the sad possibilities of the future.