- Must be in writing, signed by both spouses and notarized.
- Oral postnuptial agreements usually aren’t valid. Must be voluntary, meaning one spouse can’t threaten, physically force or trick or deceive the other spouse into signing the agreement.
- Can’t be unconscionable, meaning completely one-sided and unfair.
- Requires full and accurate disclosure by both spouses about all property and assets they own.
As with a premarital agreement, a postnuptial agreement must be negotiated and drafted with great care. Under California law, married couples have a high level of fiduciary duty to each other. Changing the character of property during marriage can raise a presumption of invalidity if one spouse is disadvantaged by the change. To maintain the validity of a California postnuptial agreement, it is necessary that a spouse who is “disadvantaged” by the terms of the agreement fully understand the terms of the agreement and voluntarily sign it.
What a Postnuptial Agreement Cannot Do
A California postnuptial agreement cannot control child custody or child support. It cannot control a person’s behavior and it cannot punish a spouse for being unfaithful. This type of agreement also cannot regulate the practice of religion.