California Marital Agreement Lawyers
Unfortunately, the divorce rate in the United States is increasing and statistics reveal that half of all marriages will end in divorce. While no couple plans to get divorced, many find that it is a wise decision to plan how their assets will be divided if divorce does indeed take place. If you are already married and want to make your own agreement regarding the division of your property, or you have had a significant change in your finances, a postnuptial agreement may be beneficial to both you and your spouse. At the Law Offices of Russakow / Greene & Tan, our experienced family attorneys will help you decide how your assets should be distributed, instead of leaving it up to the State of California.
What is a Postnuptial Agreement?
Also known as a marital agreement, a post-nuptial agreement is a contract between two persons who are already married and are not in the divorce process. The agreement sets out how each person will hold title to property that is acquired in the future, and how title to property they already own will be held. It provides for the distribution of property in the event the marriage ends in divorce. Other issues such as spousal support and payment of attorney’s fees can also be addressed in the agreement. California law regarding enforcement of postnuptial agreements differs from that of premarital agreements. Before marriage, the parties are treated as two persons entering a contract. After marriage, the parties are in a fiduciary relationship with each other and any transactions between them are viewed with heightened scrutiny. It is therefore important to obtain experienced legal counsel before executing a postnuptial agreement.
Why Enter into a Marital Agreement?
Postnuptial agreements are usually entered into by couples who are dissatisfied with the divorce laws in California. As a community property state, assets and income acquired during marriage are split 50 – 50 unless there is a valid prenuptial or postnuptial agreement. Reasons for entering into a postnuptial agreement might also include any of the following:
- assets can be protected in the event of separation or divorce
- if you have a business, a postnuptial agreement can help protect it
- you may have discussed a prenuptial agreement but did not have time to enter into one before your marriage
- you may have a prenuptial agreement and want to make changes
- you and your spouse may be considering divorce
- there is a major change or problem in the marriage relationship
- there has been a significant financial change
Are Postnuptial Agreements Legally Valid?
Under California’s Family Code, “the property rights of husband and wife prescribed by statute may be altered by a premarital agreement or other marital property agreement.” There are several requirements that must be complied with in order to have a valid postnuptial agreement. These requirements include the following:
- The marital agreement must be in writing.
- The agreement must be signed by both parties.
- The agreement must be accompanied by a full disclosure of all assets, income and debt of both parties.
- The agreement must be free from fraud and duress. The agreement may be subject to challenge if it appears that one party gave up his or her rights and the assets were not divided fairly.
- The parties must have sufficient time to consider the agreement and consult an attorney before signing.
- A copy of the agreement should be filed with the county recorder’s office after both parties have signed. This requirement will help to ensure that the agreement is upheld in court.
California Postnuptial Agreement Attorney
The property division aspect of divorce is a complex area of California law, especially if there are significant assets involved. If you and your spouse are considering entering into a postnuptial agreement to avoid some of the legal problems that would arise in the event of a divorce, you should contact the experienced family law attorneys Russakow / Greene & Tan as soon as possible. We will help you draft a valid and legal agreement that will meet both of your desired objectives.
