Prenuptial & Postnuptial Agreements

In the United States, 50% of the people who marry will get divorced.  In 2013, California has been surveyed to have a 75% divorce rate.  The rising divorce rate has become a catalyst for the rising number of couples getting prenuptial and postnuptial agreements.  A 2012 Harris Interactive Poll showed that 44% of singles and 49% of divorcees have thought of creating a prenuptial agreement.  15% of divorced people even regret not having a prenup.  People are becoming more aware of their financial situations and protecting their assets before and after getting married.  Prenuptial and postnuptial agreements are essentially two legal contracts that are established for the same purpose.  The California Family Law Code, Section 1610 establishes a premarital agreement, also known as a prenup, as “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.”  California also recognizes postnuptial agreements in the California Family Code, Section 1500, which states that “the property rights of husband and wife prescribed by statute may be altered by a premarital agreement or other marital property agreement.”  The major difference between prenups and postnups is the time in which the agreement is made.  Prenups are drafted and done prior to marriage whereas postnups are done after a couple has been married.  While postnup agreements are less common than prenup agreements, there has been a recent increase in postnup agreements.  One reasoning for this rise in postnup agreements may be associated with a “dramatic change in financial circumstances of one party,” stated Kenneth Altshuler, American Academy of Matrimonial Lawyers President.  Nevertheless, postnups and prenups serve the same purpose of reassuring how an individual’s assets and debts are handled in the event of a divorce or death.

The contents of a prenup and postnup vary between each couple.  The most common issues that are presented in these documents are equitable distribution, religion, name, guardianship, alimony, and community property.  Since California is a community state, a couple’s purchases during marriage will be split 50/50 (California Family Code, Section 2550); therefore, it is wise to outline the rules about property division in your prenup if you do not agree with the even split.  Community property includes real property (“immovable property” in civil law jurisdiction) and personal property (“movable property” in civil law jurisdiction).  Another popular topic included in prenups and postnups are terms for the forfeiture of assets in the event of a divorce on the grounds of adultery.  However, prenups cannot create guidelines for everything in your marriage.  Prenups will not cover child support and child custody arrangements.  Additionally, it will not cover any “provision…regarding spousal support” (California Family Law Code, Section 1612).  Postnups, on the other hand, can happen involuntarily.  For example, a couple who has an existing prenup and decides to change the terms of the prenup after marriage have effectively turned the prenup into a postnup.  To ensure the validity of the agreement, prenups and postnups should be reviewed occasionally.

With the increase in divorce rates, it is no wonder couples have put aside the time to draft prenuptials and postnuptials to protect themselves.  In Southern California, notably Orange County and Los Angeles County, there is a higher percentage of couples getting a divorce.  Unfortunately, there are many assets that you or your partner may have that are jeopardized if a prenup or postnup is not done.  Be sure to consult with a lawyer for drafting a prenuptial or postnuptial agreement.