Prenuptial and Postnuptial Agreements in Divorce

How Are Premarital And Postnuptial Agreements Used In A Divorce Case? What Is The Process?

In order to use a premarital or postnuptial agreement in a divorce case, you must ensure that you have followed any applicable restrictions and laws. If people do not comply with what is prescribed by California law, courts will not uphold those premarital agreements.

Barry Bonds had a famous case that helped to develop the procedural process that the courts now use to determine the enforceability of premarital agreements. The following elements must be complied with in order for the courts to enforce your premarital agreement:

• There was sufficient time prior to the marriage
• The agreement was discussed
• There were disclosures
• The opportunity to receive the assistance of counsel
• There was no duress involved in the signing of the agreement

There are certain aspects that are not determined at the time of entering into the agreement but at the time of the divorce. One such aspect is spousal support. Even if both parties agreed to waive spousal support, that portion of the agreement may be unenforceable based upon the changes that may have occurred since the signing of the premarital agreement.

If people got married and entered into a premarital agreement that waives the right to spousal support 20 years ago, the following things may have taken place in those 20 years:

• They had children
• One spouse decided to be a homemaker, staying home to care for the children
• One spouse has been the sole provider

It could be determined that the waiver of spousal support is not enforceable because one party has made sacrifices for the relationship by staying at home. What he knew at the time of signing the premarital agreement is different from what the circumstances warrant at the time of divorce.

The decision to stay home with the children could have an impact on the ability to obtain a job now that the parties are getting divorced. That spouse may be entitled to spousal support as a result of this, even though they signed a waiver 20 years ago.

It is for this reason that things like spousal support are often the stickiest part of enforcing a premarital or postnuptial agreement during the divorce process.

Does Someone Need Both A Prenuptial And A Postnuptial Agreement In California?

Sometimes people have a premarital agreement for assets obtained prior to marriage and a postnuptial agreement for assets derived during the marriage.

In general, however, the need for a premarital and postnuptial agreement will be based upon the specific needs of the parties involved.