Is a Postnuptial Agreement Enforceable in California?
There are various reasons that spouses seek to reach an agreement during the marriage and before divorce is initiated concerning the ownership of certain assets or debts, or whether alimony will be paid in the event of a divorce. In an ideal world, nobody who goes through the process of getting married would later need to worry about going through a divorce to legally dissolve that marriage. However, a postnuptial agreement can make a later divorce process simpler if spouses believe it may be on the horizon. Spouses may also experience life events after their marriage that they did not anticipate, such as a big change in income, receipt of an inheritance, or a new business venture. Those life events may give rise to the desire to enter into a postnuptial agreement as well.
In theory, spouses enter into such an agreement prior to their date of marriage; this type of agreement is known as a premarital agreement under the California Family Code. Premarital agreements can be beneficial for parties of various socioeconomic circumstances and backgrounds. However, according to a recent article in Slate, only about 15 percent of Americans currently have premarital agreements. While still a low percentage, that number represents a significant increase over the last 15 years given that only about 3 percent of Americans had one in 2010. If you are among those without a premarital agreement, can you still enter into a legally binding agreement with your current spouse about divorce-related issues? In short, a postnuptial agreement may be possible.
Understanding Postnuptial Agreements in California
A postnuptial agreement (meaning an agreement entered into between spouses after the date of marriage) can be similar to a premarital agreement in terms of its substance but has the important distinction of being created during the marriage. A postnuptial agreement, like a premarital agreement, is a type of contract between spouses. It is permitted under Section 721 of the California Family Code.
Yet it is not akin to any other type of contract that can be entered into between parties in California. Rather, there are specific requirements for marital agreements to be enforceable, and there are certain issues that are never enforceable in these types of agreements. For example, provisions concerning child support will not be enforceable.
Postnuptial Agreements Can Be Enforceable in California
Courts in California are willing to enforce postnuptial agreements that abide by the specific requirements of the California Family Code, but they also recognize that various power dynamics can be at work and that it is essential to carefully assess the circumstances under which a postnuptial agreement was created in order to determine its validity.
Under Section 721 of the Family Code, postnuptial agreements “are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other.” Accordingly, the agreement must be entered into voluntarily by both spouses, and it must be made with full disclosure and knowledge of property issues by both spouses without any undue influence. It is important to draft any postnuptial agreement with a lawyer’s assistance to ensure that it complies with the requirements under California law.
Contact Our Santa Clara County and San Mateo County Divorce and Family Lawyers for Assistance with Postnuptial and Premarital Agreements
If you are already married but want to find out more about creating a valid and enforceable postnuptial agreement in California, it is important to seek assistance from an attorney who can help you with the process and can ensure that your agreement meets all requirements under California law. One of the Santa Clara County and San Mateo County family law attorneys at Foster Hsu, LLP can speak with you today to find out more about your plans for a postnuptial agreement, and we can begin working with you to create a marital agreement that can suit your and your spouse’s needs. Contact our firm to learn more about the marital agreement services we provide in the Bay Area.
Sources:
leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=FAM&division=4.&title=&part=5.&chapter=1.&article=
slate.com/life/2025/09/marriage-couples-wedding-prenup-women-gen-z-millennials.html
codes.findlaw.com/ca/family-code/fam-sect-721/
