Why get a Postnuptial agreement?


When a marriage ends, couples often find themselves in a tsunami of conflict.  These conflicts usually include how assets should be divided post-marriage. Many couples of recent years sign prenuptial agreements, also known as “prenups,” before a marriage to establish how assets would be divided should the marriage come to an end.  However, many also choose not to do a prenup, and once married, realize they would like to further protect separate property assets.  If this is the case for you, postnuptial agreements are a great way to secure any level of ambiguity.

Since postnuptial agreements are fairly new in our society, some courts in certain states may not enforce them the way they enforce prenuptial agreements. It is important for couples to engage with a family law attorney who is vigilant when drafting postnuptial agreements.  For example, verifying a) whether or not their state recognizes postnuptial agreements; and b) how that agreement will be enforced.  Our attorneys at Irwin and Irwin Family Law provide custom postnuptial agreements for families living the Orange County area in Southern California.  “We understand California Family Law and will provide you with the best way to structure your postnuptial agreement,” says Mark Irwin, Managing Partner at Irwin and Irwin.

While we encourage couples to prepare for marriage with a prenup, there are many reasons why a postnuptial agreement becomes the preferred option:

Reason 1:

Some couples run out of time before their weddings to sign a prenuptial agreement.  Many legal experts argue that signing a prenuptial agreement within 60 days of the wedding date is the wrong circumstance under which to sign prenuptial agreement as it could be argued that one or both parties were signing the document under duress.

Reason 2:

Another reason why couples would sign postnuptial agreements is a growing level of tension in their relationship.  Married couples may become estranged, however, they may not believe divorce is the right option at that time.  In order to stay together and be assured a smoother divorce (should that occur), couples take a chance on reconciliation with dividing their assets before divorce (however, still during the marriage) in a postnuptial agreement.  These agreements can help couples stay together for a longer period of time, allowing for certain troubles in their relationship to be healed.

Reason 3:

Sometimes more serious troubles in a marriage may warrant a postnuptial agreement.  Problems may include adultery, extramarital affairs, or other forms of malfeasance.  Oftentimes couples undergoing these circumstances already live separately and/or have children.  Postnuptial agreements can help preserve the marriage so that the children in the marriage would not suffer through the pains of divorce.  They can assure that if the sustaining of a marriage does not work out, divorce will be a pre-planned obstacle that can be handled more smoothly.  However, some experts warn that over-aggressive negotiations may end up leading to divorce court.

Considering all the common situations that may lead to a postnuptial agreement, it is important to re-establish the value that they may provide.  While they may not always rescue a troubled or failing marriage, they do provide a smoother and constructive exit plan for divorce.  Postnuptial agreements are also a way for happy couples to secure separate property assets while enjoying married life.  Pre-planning what assets should be considered and how they should be distributed amongst spouses can help protect against costly and messy divorces.  For example, if a person is “gifted” an interest in a business or other asset during marriage, a postnuptial agreement may be an effective way to help maintain the separate property characterization of that gift.

IRWIN & IRWIN Family Law is located in Fullerton and Newport Beach, California.  We provide a full suite of family law services from divorce litigation, divorce mediation, child custody issues, domestic violence restraining orders and representing minors in court.  “Every situation is different, and some come with very complex financial issues.  Our legal team is here to support you during a very troubling time and prepare you for court, or to at least help negotiate or mediate the issues out to establish an equitable legal resolution,” says Kelly Irwin, Senior Litigator at the firm. To book an appointment click HERE.