Postnuptial agreements in California

A postnuptial agreement is not a late prenuptial agreement

The two documents look alike. They deal with the same subjects, they use much of the same language, and a couple signing one would struggle to tell from the page which they had. The law that governs them is different, and that difference decides most of what follows.

A premarital agreement is made between two people who are not yet married, and it is governed by a specific Act built for that situation. An agreement made after the wedding is made between two people who already owe each other a great deal, and it is governed by that relationship instead.

This is the reason a "postnup template" downloaded from a form site is worse than useless. It is almost always a premarital form, and the protections it recites belong to an Act that does not reach the document being signed.

An agreement made after the wedding is not a premarital agreement, and the Uniform Premarital Agreement Act does not govern it. Fam. Code, § 1600 et seq.; Fam. Code, § 1610, subd. (a)

What married people owe each other, and why it changes everything

Two people negotiating before a wedding are, in law, still dealing at arm’s length. They are not strangers, but neither owes the other a duty to look after their interests.

That stops at the wedding. From then on each spouse is in a relationship of the highest good faith and fair dealing with the other, and neither may take unfair advantage. The duty is not a background principle: it has specific content about access to records, about information, and about accounting for benefits taken without the other’s consent.

So a couple sitting down to make an agreement after the wedding are not two negotiators. Each of them is in a position of trust with the other, and the agreement they make is measured against that.

Spouses owe each other a fiduciary duty in their dealings with one another, of the highest good faith and fair dealing, and neither may take unfair advantage of the other. Fam. Code, § 721, subd. (b)

That duty includes giving the other spouse access at all times to any books kept about a transaction, rendering on request true and full information about anything affecting a transaction that concerns community property, and accounting for any benefit one spouse takes from such a transaction without the other’s consent. Fam. Code, § 721, subd. (b)(1)–(3)

The consequence: an agreement where one spouse gains

Follow the duty to its conclusion and you reach the point that makes a postnuptial agreement harder to do well than a premarital one.

If the agreement leaves one spouse better off than the other, that spouse is the one who has to account for it. The burden sits with the person who gained, not with the person who lost, and it is not enough that the other signed willingly.

That is not a reason to avoid a postnuptial agreement. It is a reason to make it with the burden in mind from the first conversation, and to build the record that answers it while the facts are fresh, rather than reconstructing one years later.

Where one spouse takes an unfair advantage from an agreement made during the marriage, California law may presume undue influence and put the burden on that spouse to show there was none. Fam. Code, § 721; In re Marriage of Burkle (2006) 139 Cal.App.4th 712; In re Marriage of Mathews (2005) 133 Cal.App.4th 624

Why couples make one after the wedding

The reasons are more varied than the premarital ones, and they are rarely about mistrust.

A business is the most common. Someone starts one during the marriage, takes on partners or investors, and those partners want certainty about what happens to the interest if the marriage ends. That certainty is the agreement.

An inheritance is the second. Money arrives from a parent’s estate, and the couple want to record what it is before it is mixed with everything else.

A career change is the third. One spouse leaves work to raise children, or to support the other through training, and both want the arrangement written down rather than remembered differently later.

And sometimes it is a prenuptial agreement that never got made. The wedding came too fast, the conversation was postponed, and this is the couple finally having it.

Changing what property is: transmutation

A great deal of what couples actually want from a postnuptial agreement is a change to the character of something they own. Separate property into shared. Shared into one spouse’s alone. One spouse’s into the other’s.

That is possible and it is common. It is also the part of the document where the formality matters most, because the requirement is specific and it is not satisfied by a document that merely deals with the property.

The point that catches people is the last one. A deed, a transfer, a signed statement about who pays the mortgage: all of them touch the property without saying its character is being changed. The writing has to say it.

Spouses may change the character of property by agreement or transfer: community property into the separate property of either of them, separate property into community property, or the separate property of one into the separate property of the other. Fam. Code, § 850

A change in the character of property is not valid unless it is made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. The writing must itself say that the character or ownership of the property is being changed; a writing that merely deals with the property is not enough. Fam. Code, § 852, subd. (a); Estate of MacDonald (1990) 51 Cal.3d 262

What a conversation or a course of conduct does not do

Couples frequently believe they have already changed the character of something because they agreed to, years ago, and have behaved accordingly since.

They have not. Nothing about how the two of you have treated an asset changes what it is, and nothing about having agreed out loud does either. Nor can what was meant be proved from surrounding circumstances where the document itself is ambiguous.

This lands hardest on couples who did the sensible thing informally. A wife who has paid the mortgage from her own account for a decade, on an understanding that the house would become hers, is not in the position she thinks she is in.

An oral agreement does not change the character of property, and neither does the way the spouses have behaved. The writing must show the change on its face, and evidence from outside the writing cannot be used to prove that an ambiguous writing changed the character of property. Fam. Code, § 852, subd. (a); In re Marriage of Benson (2005) 36 Cal.4th 1096

What this office does about the signing period

No waiting period is imposed before signing an agreement between spouses. The period everybody has heard of belongs to the premarital Act, and it does not reach this document.

This office applies the same period anyway, and says whose practice it is rather than letting a client assume something else is behind it.

The reason is the duty described above. A spouse presented with an agreement and asked to sign it the same afternoon has a story to tell about how it happened, and the spouse who gained is the one who will have to answer it. Seven days costs nothing and removes that story.

On an agreement between people who are already married, this office applies the same seven calendar day period before signing that it applies to a premarital agreement. That is this office’s own practice. The Family Code does not require it between spouses.

Independent counsel matters more here, not less

On a premarital agreement, a party can be advised to get their own lawyer and give up that right in a separate writing. The route exists and people take it.

On an agreement between spouses, where the question is whether one of them took unfair advantage of the other, the absence of a lawyer on the other side is not a neutral fact. It is part of the picture somebody will be describing later.

This office acts for one spouse. The other is free to retain anyone they like, and this office will not recommend or pay for anybody. Where the other spouse will not retain anyone at all, the office says plainly what that does to the document rather than proceeding quietly.

This office acts for one party only. The other party is free to retain any California lawyer they choose, and this office will not advise them.

What each of you has to tell the other

Disclosure between spouses is not a formality borrowed from the premarital process. It follows from the duty: a spouse is entitled to true and full information about anything affecting a transaction concerning community property, and to an accounting of a benefit the other took without their consent.

In practice this office prepares a written schedule for each spouse, of property and of debts, and serves each on the other before anything is signed. The record of what was served and when is kept with the agreement.

A couple who have been married fifteen years often assume they know everything already. Sometimes they do. The schedule still gets made, because "we both knew" is the weakest possible answer to a question asked a decade later.

That duty includes giving the other spouse access at all times to any books kept about a transaction, rendering on request true and full information about anything affecting a transaction that concerns community property, and accounting for any benefit one spouse takes from such a transaction without the other’s consent. Fam. Code, § 721, subd. (b)(1)–(3)

What an agreement between spouses cannot do

Two limits are worth stating, and neither is peculiar to an agreement made after the wedding.

The first is children. Whatever two parents agree between themselves about money, arrangements for a child are not settled by their agreement, and a document that reads as though they were is promising something it cannot deliver. The page on what a premarital agreement may cover sets out the position and the authority for it.

The second is the outer edge of what any agreement of this kind reaches. Some subjects are not available to be agreed, and a clause about one of them does not become effective because both people signed it.

Timing, and why sooner is better than later

Couples often raise a postnuptial agreement at the point where something has already gone wrong, or is about to. That is the hardest moment to make one.

An agreement made while both people are comfortable, with no particular event forcing it, is a different document from one made in the week a business partner demanded it or a marriage wobbled. Not because the words differ, but because the circumstances are part of what gets examined, and "why now" is the first question anybody asks.

The practical advice is unglamorous: if there is a reason to have one, have it before the reason becomes urgent. A couple who make an agreement in a quiet year have a much easier story than a couple who made one in a bad month.

Amending an agreement you already have

Some couples arrive not to make a new agreement but to change one they made before the wedding. That is a different task again, with its own formality, and it is dealt with on its own page.

The short version is that it has to be in writing and signed by both of you, and that nothing informal will do it. The same trap applies as with property: an understanding you both hold is not an amendment.

How a matter runs here

A flat fee, quoted before anything starts, and no hourly billing. The fee agreement says what it covers and when each part is earned.

The whole matter runs in a portal: each spouse answers the questions, the schedules are prepared and served, the agreement is drafted and served, the period runs, and the signing screen opens when it has. Each step is recorded as it happens.

That record is the point. A postnuptial agreement is likely to be looked at years after it was made, by somebody arguing that one spouse gained an advantage. The answer to that argument is a contemporaneous record of what each person was told, what they were given, and when.

This office quotes a flat fee before any work begins, and the written fee agreement states what it covers, when each part is earned, and your right to a refund of anything not earned.

If you have been handed one to sign

If your spouse has had an agreement prepared and you are the one being asked to sign it, your position is different from theirs and it is worth understanding before you do anything.

You are entitled to your own lawyer. If you want somebody to read it with you rather than take over the negotiation, that is a defined, flat-fee service and there is a page about it.

Where you have been given an agreement drafted by someone else’s lawyer, this office acts as your own lawyer: a written review of what the agreement does to you, advice on your rights including any spousal support, the earliest date you should sign, and a certificate for your records confirming that this office reviewed the agreement with you.