Become Familiar With The Benefits of Postnuptial Agreements
Postnuptial agreements, like prenups, are viewed negatively by some, who see them as representing a lack of faith in a marriage. However, these documents provide incredible protection for both parties in a marriage, and can be an invaluable document for couples to take advantage of. Although similar in almost every way to prenups, postnups, as their name indicates, are created after a couple is already married, and specify guidelines to be followed by the spouses regarding things like asset and property division in the event that the marriage ends in divorce.
Although it is not required under California law, each party in a marriage has the option to be represented by individual counsel when formulating a postnuptial agreement, and must waive their right to counsel if they don’t want it. Due to postnups being much more difficult to enforce than prenups, many attorneys tend to apply the standards of the latter to the former. The benefits of receiving legal counsel when drafting a postnuptial agreement include:
- Complete and trustworthy legal advice in understanding how the postnup will work, and how it benefits each party
- Increased guarantee that the document will be enforceable, as its drafting has been overseen by a legal professional
Legal advice will serve both to benefit the client and to decrease the likelihood of the document being challenged.
Granting Fiduciary Duty
Fiduciary duty requires both spouses to exercise caution when it comes to the interests of the other. Once married, both will owe a fiduciary duty to each. Since this duty is owed after marriage, the postnup must reflect it, or risk being overturned at a later date. A husband or wife must be sure to disclose all debts and/or assets to their spouse in order to uphold each other’s fiduciary duty as a sign of good faith.
Get It In Writing
As with any contract, a postnup must be in writing and signed by both spouses. This will avoid any confusion regarding the stipulations. Also, the agreement should be formulated when both parties are of sound mind. This includes avoiding drafting the prenup during times of anger or resentment. The contract should reflect what both parties consider to be fair. Couples should avoid drafting the document without the guidance of an attorney, as well.
A postnuptial agreement should not be formulated without proper legal guidance. Contact an attorney with experience drafting these documents from the law office of San Diego’s Fischer & Van Thiel, LLP, at 858-935-6211.
Mike's Top FAQs About Family Law401K plans and divorce
401K plans and divorce
If my spouse waives his right to my 401k plan, is there any circumstance that the court will still award him half or a portion of my 401k plan?
It is theoretically possible that a court can disturb an agreement to waive rights to property, but it is unlikely. Courts will generally treat agreements as contracts, and thus are likely to strike an agreement only if it is unconscionable, induced by fraud, undue influence, duress or is against public policy. The judge cannot “reject,” nullify, or modify the provisions of an agreement merely because of his or her personal belief that a different arrangement should be made.
A marital settlement agreement, or MSA, can be used as a contract between spouses regarding the division of property that would otherwise be subject to community property laws. An MSA is subject to general contract laws, meaning that it can be found invalid if terms are against public policy (which includes, but is not limited to, (a) abrogating the statutory child support duty or impinging on the court’s jurisdiction to award child support, (b) limiting the court’s exercise of child custody jurisdiction, (c) “altering legal relations,” (d) “promoting dissolution,” and (e) providing for “fault”-based penalties at marriage dissolution) . The MSA can also be found invalid if entered into as a result of fraud, duress, menace, undue influence, or other factors which may make the agreement void or invalid. Generally, an agreement such as the MSA is favored. Hence, if there are no legal or equitable grounds for rescission or reformation it is binding on the parties and the court without express approval.
Can I get child support in California if I am not getting a divorce?
I have been separated for two years from my wife, and my kids live with me. Can I get support without filing for divorce in California? We have not been living together since our separation, and even file taxes separately.
You do not need to file for divorce in order to get support. You will need to go through the court to obtain a child support order so you will have to file something. You can contact your local Department of Child support services office and they can help you get started. So while you do not have to file for divorce, you can file for a legal separation. The court needs to know that you two have in fact separated and there is one parent who is the full time provides and therefore in need of support.
Can I move out with my daughter before the divorce in California?
My wife and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living. Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?
Yes, you can move out with your daughter, assuming there are no court orders already in place regarding custody and visitation. It is important to maintain frequent and continuing contact between the child and the other parent. When the court makes custody and visitation orders they will look highly upon the parent who facilitated contact with the child and the other parent. It is important to make the transition as easy as possible for the child.
Question: Is there a statute of limitations on owed child support?
An ex lover of mine (20 years ago) just approached me out of nowhere about getting tested to see if her son is my child. He is 20 and I live in California. I am trying to find the statue of limitations for child support if indeed I take the test and the child turns out to be mine.
Unless the mother has made a claim for child support with the welfare office or her local Department of child support services office, they cannot now collect from you on child support. Since he is no longer a minor child now that he is emancipated, there are no obligations for child support. You can get tested to see if you are the father, but you do not have to.
If the state has paid out welfare for the child, and it turns out that you are the Father, there can be some potential liability there with having to pay back the state the money they paid out. If this is not an issue, then they cannot now ask you to pay for child support.
Is the opinion of the child ever taken into consideration in a divorce?
Typically the Courts will take the child’s opinion into consideration at the age of 12. There is no set age, it depends on the maturity level of the child. If a child is of sufficient age and capacity to form an intelligent preference to custody the court can take it into consideration. It is important to note that all judges will rule for what is in the child’s best interests whether it be for the mother or the father.