In one of our previous posts, we took a look at prenuptial agreements and the role they may play in a divorce. But what about the flip side? What is a post-nuptial agreement? A postnup is intended to provide financial protection for what may occur after a marriage dissolves. For high net worth individuals, particularly in cases where no prenup exists, a postnuptial agreement can be essential.
The most significant difference between a prenup and postnup is the fact of fiduciary duty toward a spouse. If you and your intended sign a prenup, you are not yet married and you have no fiduciary responsibility toward your prospective spouse. That is, you are not at that point in time legally considered as having your betrothed’s best interests as your priority. Once you are married, however, this changes.
Suppose divorce proceedings are underway for a high net worth couple. One requirement of the process is to sign an affidavit of net worth to facilitate the division of assets and property. This is a time when complete disclosure is required. Should other, undisclosed, assets be found later, not only may your divorce settlement be set aside by the court, the party that concealed assets could be charged with financial fraud.
Aside from full financial disclosure, other aspects of postnuptial agreements include:
- The agreement must be in writing.
- It is a good idea that each party have separate and different representation when drafting the postnup. This is not a law, but it can prevent later problems, such as enforcement of the postnup, due to lack of counsel.
- Take the time necessary to draft, discuss, and understand the postnup.
For individuals and couples fortunate enough to own substantial (or even greater-than-substantial) assets and/or property, it cannot be emphasized enough that you should have, at every step, the advice of an experienced and skilled family attorney who is well-versed in California divorce law, prenups and postnups. After all, protection of your assets can be as important as maintaining marital and post-marital civility, if not harmony. Remember, this is our opinion on the law. This blog is not intended as legal advice. It is merely a topical overview intended for informational and/or discussion purposes. If you have questions or concerns about any aspect of how these matters may affect you, you may wish to consult a knowledgeable family law attorney.
As Orange County’s premier family law specialists, the attorneys at Dinnebier & Demmerle can provide answers to your questions and concerns, clarify and establish your legal rights, and represent you in court. If you would like more information about high net worth divorce, prenuptial or postnuptial agreements, or any other aspect of California family law, please call to set up a consultation. We’re ready to move forward when you are. Just contact us in Tustin at 714-598-3714.