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San Jose Divorce Attorney > Blog > Prenuptial Postnuptial Agreement > A Postnuptial Agreement Could Save Your Marriage Or Simplify Your Divorce

A Postnuptial Agreement Could Save Your Marriage Or Simplify Your Divorce


Sometimes indecision is a sure sign that something is wrong.  In 2020, after nine months of being quarantined with your spouse, you knew that your current relationship with each other was untenable, but you were not sure what to do instead.  You thought about waiting it out until the end of 2020 and then filing the divorce petition on the first Monday in January, like so many couples do.  Maybe you even discussed the prospect of divorce.  Meanwhile, Divorce Monday has come and gone, and you’re still stuck.  On the one hand, having legal obligations govern your relationship with your spouse instead of an endless cycle of guilt trips and gaslighting is inciting, but on the other hand, do you really want to put on a smile every time your kids tell you how awesome their new stepparent is?  Imagine if there were a legal agreement that could resolve your property-related disputes with your spouse without ending your marriage.  There is such a document, and it is called a postnuptial agreement.  A San Jose family law attorney can help you draft a postnuptial agreement that will resolve many of the financial disputes that could occur in your divorce, if and when it happens.

What Is the Purpose of a Postnuptial Agreement?

At first glance, postnuptial agreements sound superfluous.  Since California is a community property state, isn’t the court just going to divide your marital property in half if you divorce?  If you didn’t sign a prenup before you married, isn’t it too late to make a legally binding agreement about separate and marital property?  In fact, circumstances change after you get married, and how much of a claim one spouse can have on the other’s separate property, or how much responsibility each spouse bears for the other spouse’s non-marital obligations, can be a major source of conflict.

The following are major assets and expenses that can cause conflict in your marriage:

  • One spouse gets a large sum of money from a personal injury lawsuit
  • One spouse inherits money or real estate
  • One spouse joins a business partnership
  • One or both spouses have children from a previous marriage, and financial support for these children after they reach adulthood is a source of conflict

The law states that inherited wealth and personal injury settlements are separate property even if they come into your possession during your marriage.  If you treat them as marital assets, such as by depositing them in a joint bank account or paying the mortgage on the marital home, the court may them a gift to the community.  Additionally, income one spouse gets from a business established during the marriage is marital property, but the other business partner’s might be uncomfortable with this.  A postnuptial agreement enables you to keep certain items of property separate that would otherwise be marital, which may help you keep the peace in your marriage or have an amicable divorce.

Let Us Help You Today

Postnuptial agreements are not 100 percent effective at preventing divorce, but they do require you discuss finances honestly with your spouse.  Contact our San Jose prenuptial & postnuptial agreement attorneys at Foster Hsu for a consultation.



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