Many California couples put a prenuptial agreement in place before they get married to detail things like which assets they would each keep if the marriage ended in divorce. This can be important in a community property state like ours. They might also address things like inheritances and even alimony.
If the marriage is going well, they might rarely think about their prenup. Some people even assume that the prenup expires or at least no longer holds any legal weight after a while. That’s not the case unless they included a “sunset” provision in it.
Assuming there’s no sunset provision, if they were to divorce, they could have to deal with a prenup that no longer addresses the needs of one or both of them. While a prenup can’t technically be modified once a couple is married, it can be replaced with a postnuptial agreement. Similarly, couples without a prenup can put a postnup in place instead.
What circumstances make it worthwhile to replace a prenup with a postnup?
It can be worth the time and expense of voiding the prenup and creating a postnup in one or more of the following scenarios:
- One spouse has ended up with a far higher income than the other.
- One or both spouses have their own business.
- One or both spouses have received an unexpected inheritance.
- One spouse has become a stay-at-home parent or elder caregiver and left the full-time workforce.
- One spouse has developed serious health issues that prevent them from working.
- One spouse has accumulated considerable debt (through failed business ventures, gambling or overspending).
- One spouse has paid off the other’s debt (like student loans or individual credit card debt).
- One spouse worked to support the couple while the other spouse got an advanced degree or built a business.
- One or both spouses purchased specific assets that they want to retain in a divorce.
These are all things that can be addressed in a postnup. If a couple divorces, a well-crafted and up-to-date postnup can help the process go more quickly and smoothly. If they remain together, it’s still beneficial to be on the same page about these important financial matters.
As with a prenup, each spouse needs to have their own legal representation as they negotiate and codify a postnup. This helps ensure that their rights and interests are protected.