Prenuptial vs. postnuptial agreements
The two agreements address similar subjects but arise under different rules. The difference is not merely timing; it is the legal relationship between the parties at the moment they sign.
The central difference
Before marriage, the parties are two individuals negotiating at arm's length. After marriage, they are spouses who owe each other fiduciary duties in their dealings with one another, including duties of disclosure and fair dealing in transactions affecting marital property.
That change matters. An agreement between spouses that advantages one of them may be examined more closely than the same terms would be in a premarital agreement, and the spouse who benefits may bear the burden of showing the transaction was fair.
When a postnuptial agreement is used
- Confirming the character of property already owned
- Changing how future income or acquisitions are treated
- Addressing ownership of a business started during the marriage
- Documenting separate-property contributions to a jointly held asset
- Modifying an existing prenuptial agreement
- Establishing terms after a significant change in circumstances
- Defining financial rights following reconciliation
A postnuptial agreement is also the practical answer when a wedding is too close for a premarital agreement to be prepared properly. Rather than compressing the process into the final weeks, the parties marry and address the terms afterward without a deadline.
What stays the same
Both agreements must be in writing and signed. Both depend on disclosure. Both benefit from independent representation on each side, and for spousal support terms independent counsel is required. Both should be drafted so that their operation is clear years later, when the people applying them may be attorneys and a judge rather than the couple who signed.
This article provides general information about California law and does not constitute legal advice. Every matter depends on its own facts. Consult an attorney about your circumstances.