A postnuptial agreement is a good way to set up the outcome of a potential divorce case ahead of time. These agreements give you greater control over your assets and how your divorce will proceed instead of relying on the court’s decisions. When you form a postnuptial agreement, you typically have wide latitude to include whatever you want – but there are certain things the courts will not allow in a postnup. The Santa Barbara divorce lawyers at the Law Offices of Bamieh and De Smeth explain what you can and can’t include in a postnuptial agreement in California. For help with your postnup, call our law offices today for a free legal consultation.
What Terms Are Allowed in a Postnup?
California law gives married couples a lot of freedom to choose what happens in their divorce case if both parties are willing to agree on the outcome. Prenuptial agreements formed before the marriage can include many of these terms, but postnuptial agreements formed after the marriage starts can also include any of the following concepts, decisions, or ideas if you did not sign a prenup:
Decisions on Property Division
If you get divorced, one of the biggest issues will be deciding who gets to keep what property. In California, the property you share with your spouse is usually divided 50/50. A couple can use a postnuptial agreement to agree to a different split. Additionally, the property that is divided is your shared “community property.” A postnuptial agreement can define something as community property or keep it separate as individual property, even if it wouldn’t normally be defined that way. This can help ensure that you get to keep control over business assets, investments, or other important assets. This is especially important in a high asset divorce.
Making these decisions in a postnup instead of a prenup can be incredibly important in many cases. If you get married when you’re very young, your financial situation could change considerably after marriage. You may be able to protect new business investments or increases in individual net worth that take place after the marriage with a postnup. Alternatively, if you discover your spouse is bad with handling money, you might be able to separate your debts and protect your personal assets with a postnup.
Sometimes after a divorce, the court will decide that one party should pay the other party ongoing support to cover their needs. This could include paying for rent, groceries, education, or other needs. In many cases, alimony (a.k.a. spousal support) is paid on a temporary basis, but this can also be made permanent if the recipient cannot support themselves. You and your spouse can agree on whether or not alimony will be paid, whether it will be temporary or permanent, and how much the alimony will be by using a postnuptial agreement.
If your spouse cheats on you, but you decide to stay together, you may want to create a postnuptial agreement with an infidelity clause in case they ever do it again. An infidelity clause can set out rules for how cheating or adultery will change asset division, alimony, or other parts of a divorce. This could help prevent future cheating or punish a cheating spouse by having them lose assets or pay alimony after a divorce.
Parties can agree to many things as long as they don’t violate certain considerations which we’ll discuss below. This means you and your spouse can get creative and discuss many specific issues that are important in your case. As long as the agreement doesn’t seriously hurt anyone’s rights or go against public policy, courts should allow you to make specific agreements about whatever you want.
Terms that Aren’t Enforceable in a Postnuptial Agreement
There are limitations to what courts will enforce in postnuptial agreements. Some of these restrictions are specific, but some are general restrictions to keep in mind when making a postnup:
Child Support Decisions
Unfortunately, courts like to be involved in child support and child custody decisions. Typically, you cannot make decisions ahead of time as to who will get custody or pay support since the facts now might not match with the facts at the time of divorce. A bad agreement now could hurt the children’s best interests, so courts do not allow these agreements.
Agreements dealing with sexual favors or trading sex for another benefit are usually barred. Typically, it is against public policy to allow people to exchange sex for favors, and these agreements are barred from being enforced. Moreover, courts simply cannot enforce these agreements because they cannot force anyone to have or abstain from sex.
Other Agreements Against Public Policy
Saying that an agreement is against “public policy” means that it hurts some interest important to the courts or the public as a whole. For instance, agreements that lead to physical injury or interfere with court processes, fair hearings, due process, or criminal law would be bad, so the court will not enforce them.
If an agreement is so one-sided or greatly harms either party, the court will usually refuse to enforce the agreement by saying it is “unconscionable.” This means that the agreement was so wrong or unreasonable that no one in their right mind would have agreed to those terms, and it would be inexcusable to enforce the agreement. This is rare but does come up in some extremely one-sided agreements. Typically, an agreement isn’t declared unconscionable when someone writes, but rather it’s found unconscionable later when they try to enforce the agreement.
Call Our Ventura Postnuptial Agreement Lawyers for a Free Consultation on Your Case
If you are considering forming a postnuptial agreement, talk to a lawyer about what you can and cannot include in the agreement. Some things you think you might be able to control, like child custody, are blocked from postnups. It is important to talk to a lawyer about your case before writing or singing a prenup or postnup in California. For a free legal consultation on your case, call our Ventura family lawyers at the Law Offices of Bamieh and De Smeth today at (805) 585-5056.