Post-marital agreements, much like premarital agreements, can be opportunities for married couples to collaboratively create agreements around things like:
How to deal with day to day finances
How to allocate their income between separate and community property
How to work together to plan for retirement
How to treat certain income and/or assets differently than the law might treat them
How to create a better sense of partnership between a couple, both emotionally and financially
How to create a plan to take care of each other going forward and to take care of children from both from the marriage and prior relationships
How to take care of each other in the event of a divorce
There are many times during a marriage that the issue of having a Post-Marital Agreement may come up. As an example, a couple who are just about to get married realize too late that they would like to have a premarital agreement. Or, a long-married couple decides that they would like to have formal agreements around how to treat assets and income going forward to have more parity or to reallocate their respective interest in certain assets (community to separate or separate to the community).
Also, married couples with blended families frequently decide they want agreements around their estate planning so that they can take care of each other and still set aside something for their children from prior relationships. All of these couples could benefit from a collaborative post-marital agreement (sometimes referred to as a post-nuptial agreement).
Having said that, post-marital agreements differ significantly from premarital agreements. First, once you are married, in the eyes of the law, a couple is now considered to owe a “fiduciary duty” to one another. This is a fancy legal term that essentially means that a married couple is considered to be in a relationship of trust with one another and that they are to act in their collective best interest. Because of this, these agreements require that both parties make full and complete financial disclosures to each other, that they each have counsel to review and advise them, and that there is a sense of “fairness” to the agreement. In California, an agreement that is deemed to be too one-sided may not be enforceable. The same would be true for an agreement that was entered into where both parties were not completely transparent with each other about their assets and income.
For couples just starting out, these agreements can help them create a platform around how they want to manage their financial lives. The agreements can also identify assets and obligations that each spouse may be bringing into the marriage as well as characterize how they want their respective incomes to be treated during the marriage. This can help a couple create their own sense of partnership that may differ from California Community Property Law.
For long-married couples, post-marital agreements can help them find parity in their financial lives and help them set their expectations around their future, their estate planning, and how they want to provide for each other and their children (both of the marriage and from prior relationships) both in the event the marriage should end or if one spouse should die.
The best thing to do if you are considering a post-marital agreement is to find the right collaborative team to help you both have a productive conversation about how to best address your respective needs and concerns.
Lissa Rapoport is a family law attorney and mediator in Marin County.
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