A postnuptial agreement is a contract made by spouses after marriage (as opposed to a prenuptial agreement). Postnuptial agreements are not to be confused with marital settlement agreements, which are executed as part of the divorce process.
Married couples sometimes decide to enter into such contracts after marriage. They may relate to the characterization of property (i.e., changing property from separate to community property), or are used to make changes to a previously executed premarital agreement.
What is involved in drafting a valid postnuptial agreement?
The requirements for a valid postnuptial agreement are similar to those for contracts in general. Here are some of the important things to remember:
- Both parties must have the legal capacity to enter into a contract.
- Although not required, the parties' mutual consent is sufficient consideration.
- The consent of the parties must be free of duress, menace, fraud, undue influence, or mistake
- Technically, there is no writing requirement. However, since real property or a transmutation is usually involved, and those agreements require a written document, a postnuptial agreement will usually require one as well. It is also simply a good idea to reduce the agreement to writing.
- If it affects real property, it may be recorded in the county where the property is located.
- If it involves a transmutation of real property, it must be recorded to be effective as to third parties.
In order to ensure that your postnuptial agreement is valid and enforceable, it is best to consult with an experienced drafting attorney.
Are there any restrictions on postnuptial agreements?
Because of the state's interest in protecting the marital relationship, there are several limitations on what can be included in a postnuptial agreement. Spouses are not allowed to execute contracts that alter their “legal relations.” This includes the duties of mutual respect, support, and fidelity. Here are some examples of what is generally prohibited:
- A contract to pay for companionship or other domestic services
- A contract limiting the duty to support one's spouse during marriage
- A contract that limits the obligation of supporting one's children
- A contract that encourages divorce
Spouses are considered to be in a fiduciary relationship with each other. This means that both parties are have a duty of the highest good faith and fair dealing in their actions with one another. Because of this relationship, postnuptial agreements are subject to heightened scrutiny when reviewed by the court. For instance, if one spouse is giving up significantly more than the other spouse, the court may take that into consideration in determining if fraud or undue influence has taken place.
For this reason, it is a good idea for both parties to be represented by independent counsel. This will help ensure both sides get a fair deal, as well as increase the likelihood the agreement will be enforceable in the case of a dispute.
Helix Law Firm can help with postnuptial agreements or other custom drafting
Drafting legal documents requires knowledge of each document's particular requirements, as well as precision and attention to detail. At Helix Law Firm, we can custom draft a variety of documents for your situation.
If you're interested in learning more about how Helix can help, please call us at (619) 567-4447 to schedule a free consultation.