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Commonly Asked Questions about Postmarital Agreement Documents

While both prenups and postnups can be found valid and enforceable during a divorce, some experts claim a prenuptial agreement is often the more straightforward of the two, as it is made before a couple combines assets.
Additional requirements of a postnuptial agreement are for the agreement to be fair. Neither spouse should sign the agreement under involuntary circumstances like coercion, threats, physical force, or deception. Also, the contract cannot leave one spouse with less than what they came with to the marriage.
You and your spouse can create your own postnuptial agreement, but having it drafted by a legal professional, such as a divorce lawyer, can help ensure its compliant with state laws. In fact, some states require that each party has its own legal counsel, to make sure both spouses fully understand their rights.
The following cannot be included in postnuptial agreements: An unfair decision on which spouse shall provide spousal support. An unjust determination of which spouse gets what property after the divorce. Any language related to child custody, child support, or visitation rights.
Generally speaking, this type of agreement is designed to supersede a will or state laws, giving spouses certain property rights. By signing such an agreement, the parties agree to waive any rights they would otherwise have to inherit property or other assets.
In California, you can write your own postnuptial agreement, but this option is not recommended. These agreements must meet numerous legal requirements to be considered valid and enforceable by law, and most non-legal professionals simply do not possess the knowledge and resources to draft a sufficient agreement.
Postnups generally hold up in court provided they are fair and equitable, not coerced, comply with the laws of the state, and involve a disclosure of both parties finances. However, if a postnuptial agreement is so one-sided that it shocks the conscious, the court may throw it out.