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Most people who get married are not thinking about what may happen down the road if the marriage doesn't work out. The reality, of course, is that what begins with a picture-perfect wedding could fall apart years later. For this reason, California allows couples to enter into prenuptial agreements (before the marriage) and postnuptial agreements (after the marriage).


While you may not be contemplating a divorce at this stage of your relationship, long-term planning is smart for both you and your significant other. Having the right agreement in place means having a law firm that understands your needs and how best to meet them. That's why you can count on MacKay & Martin, LLP.

Benefits of Having a Prenuptial Agreement

When spouses in California divorce, a court must determine which assets are community property. Without an agreement to the contrary, courts presume that all property and earnings acquired during the marriage are community property subject to a 50/50 division between the spouses.

However, California law allows couples who are about to marry to enter into agreements as to how they will handle their respective property rights upon divorce. These agreements are especially valuable where one or both spouses own a business or have substantial financial assets or property prior to their marriage. More specifically, a prenuptial may serve the following purposes, among others:

  • Designate which property will be considered separate (or community)

  • Plan for the division of assets upon divorce

  • Determine spousal support

  • Declare which debts will remain the separate obligation of each spouse

  • Protect or divide interests in a business

  • Create an asset plan in the event either spouse dies


There are limits, however, to what a prenuptial agreement can accomplish. For instance, an agreement cannot predetermine what child support will be, since California courts will need to examine the amount of support that is appropriate under state guidelines. The same is true with respect to child custody and visitation. The prenuptial agreement may be used to waive spousal support, but not if doing so would leave a spouse destitute. A spousal support waiver is also not enforceable if one spouse didn't understand that he or she would be signing away their right to seek support.

Holding Hands

Legal Requirements for Valid Prenuptial Agreements

Before you sign a prenuptial agreement, it's important to make sure it will be valid and enforceable. This requires the following:

  • The agreement must be written, signed, and notarized 

  • The parties must be represented by independent legal counsel or sign a separate waiver

  • There must be a fair, reasonable, and full disclosure of the property and financial obligations between the parties

  • The agreement must be entered into without undue influence, threats, or duress

  • The terms must not be unconscionable (extremely unjust or one-sided)

  • The agreement must be written in a language each signatory speaks fluently, otherwise the party must have a separate interpreter closely explain the terms of the agreement

  • The parties must have at least 7 days to review the final draft prior to signing

Postnuptial (Marital) Agreements

While many people are familiar with prenuptial agreements, not as many have heard of postnuptial agreements. These are similar in nature to prenuptial agreements, except they are entered into after the marriage.

Married couples enter into postnuptial agreements for largely the same reasons they enter into prenuptial agreements. Perhaps the couple simply overlooked or didn't consider a prenuptial, and now they wish to define their respective marital property rights.

In some cases, postnuptial agreements help spouses account for events that took place after their marriage. One spouse may have started a business and does not wish to include the other in his or her dealings. Or there may have been an extramarital affair, and the couple only decided to stay married on condition of signing a postnuptial. Maybe one of the spouses has become addicted to drugs, and an agreement helps limit that person's spending.

Postnuptial agreements are also entered into when the couple anticipates a separation or divorce. Spouses may use them to divide assets and therefore avoid this step in the divorce process.

Any time significant life changes occur after the date of marriage, it's a good idea to consider a postnuptial agreement.

Having a Qualified Family Law Attorney is Important

Prenuptial and postnuptial agreements can help spouses anticipate a worst-case scenario for their marriage. But if they're not drafted and executed correctly, they will serve only to complicate matters. Special precautions must be taken with respect to postnuptial agreements since they are not automatically presumed to be valid.


The right attorney understands California's requirements for marital agreements and ensures the necessary steps are taken to make them enforceable. A knowledgeable attorney will review your finances and assets, along with your life situation, and advise as to whether an agreement is right for you. Both types of agreements can have significant effects on your rights, which is why you need a diligent attorney in your corner.

Contact our Family Law Office for Assistance in Negotiating and Preparing Marital Agreements

If you are considering entering into a prenuptial or postnuptial agreement with your spouse, we can help. At MacKay & Martin, LLP, we take our clients' family law questions seriously and provide them with the legal services they need to protect what matters most.

Postnuptial Agreements
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