Pre-Marital and Post-Marital Agreements
Pre/Post Nuptial Agreements in California
Couples today are increasingly proactive about planning their financial future, not just before marriage but during marriage as well. Pre-marital agreements (commonly known as prenuptial agreements) and post-marital agreements (often called postnuptial agreements) can serve as valuable planning tools for couples who want clarity in their property rights, financial responsibilities, and asset division.
Whether you are newly engaged or have been married for years, the Law Offices of Alexandra McIntosh is here to assist with drafting, reviewing, or enforcing marital agreements. Our experienced San Diego prenup lawyer and San Diego postnuptial agreement attorney will help you understand California’s requirements and protect your long-term interests.
What is a Prenuptial Agreement?
A prenuptial agreement in California is governed by the Uniform Premarital Agreement Act, codified in the California Family Code. Prenups are designed to establish each partner’s financial rights and responsibilities in the event of divorce, separation, or even death.
Without a prenup, California’s community property laws apply. This usually means that property acquired during marriage is divided equally between spouses. A carefully drafted prenup allows couples to take control and make their own arrangements instead of leaving those decisions to the court.
Requirements for a Valid Premarital Agreement
Not all agreements are automatically enforceable. California has several legal requirements to ensure a prenup is valid:
- Written Document: A prenup must be in writing and signed voluntarily by both partners.
- Timing: Each party must have time to review the agreement before signing; rushed or last‑minute prenups may later be challenged.
- Full Disclosure: Each spouse must fully disclose assets, debts, and income before signing.
- Independent Counsel: Each party should have the opportunity to consult with independent legal counsel, or waive the right in writing.
- Fairness: The agreement cannot be unconscionable or grossly unfair at the time it was created.
The family law attorneys at the Law Offices of Alexandra McIntosh can assist you in reviewing, drafting, or negotiating a prenup to ensure it meets California’s legal standards.
What Rights Can Be Included in a Prenup?
A California prenuptial agreement may cover:
- Division of assets and property
- Allocation of debts and liabilities
- Spousal support provisions (with court oversight)
- Management of assets during marriage
- Business ownership or professional practice interests
- Inheritance and estate planning
Can Child Custody and Support Be Included in a Prenup?
No. California courts will not honor provisions in a prenup related to child custody or child support. California prioritizes the best interests of the child at the time of divorce or separation.
While you cannot use a prenup to limit future child support obligations or dictate custody arrangements, you can still address financial planning to ensure children are provided for through estate provisions or trust planning.
Enforceability of Premarital Agreements
Courts in California closely examine prenuptial agreements. If a prenup was entered voluntarily, with transparency, and is consistent with California public policy, it is generally enforceable. However, even properly executed prenups may be challenged in court if one partner claims it was signed under pressure, lacked proper disclosures, or is found unconscionable.
In this event, California courts will review whether:
- Both spouses had adequate time to consider the agreement.
- Full financial disclosures were made.
- Each spouse had independent legal advice (or knowingly waived it)
- The terms are consistent with public policy.
Representation by a skilled attorney such as those at the Law Offices of Alexandra McIntosh greatly reduces the risk of challenges in court
What Is a Postnuptial Agreement in California?
A postnuptial agreement is quite similar to a prenuptial agreement, but it is created after the couple is married. This allows spouses to clarify financial responsibilities and make arrangements for potential divorce or separation. Many couples choose a postnup when their financial situation has changed, often after starting a business or receiving an inheritance.
Postnuptial agreements often include:
- Division of marital property
- Debt responsibility
- Spousal support terms
- Protection of family-owned businesses or inheritances
Like prenups, postnups must meet strict legal standards to be enforceable. Because spouses already owe financial duties to one another, courts may review postnups more carefully than prenups.
Postnuptial Agreement California Requirements
For a California post nuptial agreement to be enforceable, it must:
- Be in writing and signed by both spouses
- Be entered into voluntarily without coercion
- Be based on full financial disclosure
- Allow each spouse the chance to obtain independent legal counsel
With more scrutiny applied to postnups, consulting the Law Offices of Alexandra McIntosh is essential to ensure enforceability. Our team will draft an agreement that reflects your intentions while meeting state requirements.
Frequently Asked Questions About California Prenups and Postnups
Do I need a lawyer for a prenuptial agreement in California?
While technically not required, California strongly recommends that each party has independent legal counsel before signing a prenup. This ensures that both spouses fully understand their rights and increases the likelihood that the agreement will be enforceable.
Can a prenup in California waive spousal support?
Yes, but only under certain circumstances. A prenup may address spousal support (alimony), including a waiver, but courts will carefully examine these provisions. If the terms are found to be unfair at the time of enforcement, a judge may decline to uphold the spousal support waiver.
What is the difference between a prenuptial agreement and a postnuptial agreement?
A prenuptial agreement is signed before marriage, while a postnuptial agreement (or post marital agreement) is signed after marriage. Both serve to define financial rights, property division, and responsibilities between spouses in California.
Are postnuptial agreements enforceable in California?
Yes, if they meet California’s strict requirements. A valid postnuptial agreement must be in writing, signed voluntarily, based on full financial disclosure, and free from coercion. Because courts review postnups closely, it is important to have an experienced San Diego postnuptial agreement attorney prepare yours.
Can we include child custody or child support in a prenup or postnup?
No. California law prohibits couples from predetermining custody or child support in a prenup or postnup, as these issues are always decided by the court based on the child’s best interests at the time of separation.
What happens if we don’t have a prenup or postnup?
Without a marital agreement, California’s community property laws apply. This generally means all assets and debts acquired during marriage are divided 50/50 in divorce. A prenup or postnup allows you to set your own terms instead of relying on default state law.
Do I need separate lawyers if my spouse and I agree on the terms?
Yes, it is still recommended. Courts look for fairness and voluntary agreement, and having independent legal counsel protects both parties. The Law Offices of Alexandra McIntosh regularly works with spouses to ensure agreements are compliant and fairly represent both individuals’ interests.
Work with the Law Offices of Alexandra McIntosh
If you are considering a prenup or postnup, it is important to work with a skilled attorney who understands the requirements of postnuptial agreement California law and how courts enforce these contracts. At the Law Offices of Alexandra McIntosh, our experienced team provides comprehensive guidance in preparing, reviewing, and enforcing marital agreements tailored to your situation.
Contact the Law Offices of Alexandra McIntosh today to schedule a consultation with a trusted San Diego prenuptial agreement attorney or postnuptial agreement lawyer.
Contact Us Today
If you and your partner are considering a prenup or postnup, don’t leave your financial future to chance. Speak with a skilled San Diego prenuptial agreement attorney or San Diego postnuptial agreement lawyer at the Law Offices of Alexandra McIntosh today.