Can I Get a Prenup After Marriage?

If you and your spouse feel you could benefit from a prenuptial agreement but didn't consider it until after the wedding, you may be wondering whether you can get a prenup after marriage.

July 30, 2024 Read Time: 4 minutes Reviewed by attorney Daniel Galdjie

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You might be wondering, “Can I get a prenup after marriage?” Technically, the answer is no. However, married couples can enter into a postnuptial agreement. Under California Law, a postnuptial agreement serves basically the same function as a prenuptial agreement.

A postnup can address issues that may have arisen during the marriage, such as changes in financial circumstances or the birth of children. It’s important to note that postnuptial agreements are subject to state laws and must be drafted and executed correctly to be legally binding. You should consult with an experienced prenup attorney to ensure that your postnup is valid and enforceable.

Discuss your postnuptial agreement with a qualified attorney at Cyrus Pacific Law.

What Is a Postnuptial Agreement?

A postnuptial agreement, also called a postnup or postmarital agreement, is a legal contract that is entered into by a married couple after they have tied the knot.

A postnup sets out the terms and conditions of property division and spousal support in the event of divorce or death. The purpose of a postnuptial agreement is to provide a plan for the financial aspects of the marriage. Otherwise, the couple would be subject to Related: What Is a Prenup, What Does It Do, and Does It Work?

Common Reasons for a Postnuptial Agreement

Couples opt for a postnuptial agreement for various reasons, which may include:

1. Changes in financial situation. A significant change in either spouse’s financial status, such as receiving an inheritance or a substantial increase in income, might prompt the need for a postnuptial agreement to clarify how these assets will be handled in the event of a separation.
2. Protecting business interests. If one or both spouses start a new business after marriage, they might want a postnuptial agreement to protect their business interests and ensure that the business is treated as separate property.
3. Debt protection. To shield one spouse from the other’s debt, couples might create a postnuptial agreement to outline the responsibility for debts incurred during the marriage.
4. Revising pre-existing agreements. Couples who already have a prenuptial agreement might use a postnuptial agreement to update or revise the terms based on new circumstances or mutual decisions.
5. Strengthening marriage. Sometimes, the process of drafting a postnuptial agreement encourages open communication about finances and responsibilities, which can help strengthen the marriage.

While the terms “prenup” and “postnup” are often used interchangeably, it’s important to note that a prenup after marriage is not possible; prenuptial agreements are made before marriage, whereas postnuptial agreements are made after the wedding. Both serve similar purposes in defining financial arrangements and protecting individual assets but are created at different stages of the marital relationship.

What Topics Can a Postnuptial Agreement Address?

A postnuptial agreement can address a wide range of financial issues. Some topics that a postnuptial agreement can address include the following:

• How to divide property;
• Whether and how to allocate spousal support, if any;
• How to handle one spouse’s business;
• How to divide debt; and
• How family-owned assets would be handled.

It’s important to note that specific laws can limit postnuptial agreements. Additionally, courts will not enforce agreements that violate public policy or are illegal.

Can You Waive Spousal Support in a Postnuptial Agreement in California?

Yes, but it is risky. This is because California courts heavily scrutinize postnuptial agreements that waive alimony. This is because spouses owe each other a fiduciary duty of care to each other once they are married. In many cases, waiving spousal support may seem like a breach of that care. So, it’s best to speak to an experienced attorney when considering any waivers in your postnup.

How Do Prenuptial and Postnuptial Agreements Differ?

Both prenups and postnups serve the same purpose: to establish the terms and conditions of property division and spousal support in the event of divorce or death. Both must be in writing, signed by both parties, and entered voluntarily and without coercion. The agreement must also be fair and reasonable.

However, postnups can be more difficult to enforce than prenups because the court may be more likely to find that one party was under duress or that the agreement is not fair and reasonable. This is why it’s important to consult an experienced attorney if you’re considering a postnuptial agreement.

What Are the Legal Requirements for a Postnuptial Agreement?

In California, there are several legal requirements for a postnuptial agreement to be valid and enforceable. These include:

• The agreement must be in writing;
• The parties must agree voluntarily;
• Both parties must fully disclose their assets and liabilities;
• Both parties must have legal representation;
• The agreement must be fair and reasonable; and
• The parties must sign in before a notary.

Both parties should be represented by their own legal counsel to ensure that their agreement meets all of California’s requirements.

Do I Need a Lawyer for a Postnuptial Agreement?

Although it’s not legally required, it is highly recommended that both parties have independent legal representation before signing a postnuptial agreement. This is because a postnuptial agreement can have significant legal consequences.

A lawyer can make sure that the postnuptial agreement is fair and reasonable, that it is legally binding and enforceable, and that the agreement complies with all relevant state laws.

Having a lawyer also allows you to review the agreement and understand the implications of any term. A lawyer can also negotiate the terms of the agreement.

Call Our Office for a Postnuptial Agreement in California

Can you get a prenup after marriage? You certainly can if you follow all of California’s requirements. However, drafting an enforceable postnuptial agreement is complicated. Fortunately, Cyrus Pacific Law can help. Our knowledgeable attorney, Daniel Galdjie, Esq., can help you draft and negotiate a postnuptial agreement to meet your marital goals.

Our office has represented many Californians in negotiating prenups and postnups. Contact us today.