CA Postnups & Fiduciary Duty: Avoid Enforceability Issues

Post-Nuptial Agreements and the Fiduciary Duty

Posted October 16, 2020

Marriage is a legally binding contract that couples often sign prior to understanding the terms. Those individuals who educate themselves on how their property rights and financial responsibilities change at the time of marriage have the advantage of deciding if a pre-nuptial agreement is a necessary component of their financial future. Does this mean that once married you and your spouse can no longer alter the terms of the contract?

Two major factors make premarital agreements easier to enter into than post-marital agreements:

(1) the Family Code provides specific section of law that cover the drafting, negotiating, and signing of premarital agreements, and

(2) unmarried couples do not have the fiduciary obligations to each other that married couples do.

Once you are married, those factors no longer exist. Post-marital agreements deceptively do not have written requirements for independent counsel, disclosure of information, time to review before signing, or any other procedural boxes to check. The catch is that married individuals have powerful fiduciary duties to their spouse. These fiduciary duties guide us when determining the enforceability of post-marital agreements.

Therefore, the answer to the above question is no, you can enter into a contract after time of marriage to alter the terms of the marital contract, but you need to be extra cautious. Any hint of an unfair advantage triggers a presumption that the advantaged spouse unduly influenced the other to sign the post-nuptial agreement. The ramifications of an unenforceable post-nuptial agreement are enormous considering its impact on your financial future.

The lesson is to educate you and your future spouse on the marital contract prior to getting married so you can decide to (1) write the terms with your spouse, or (2) accept the terms as written in the Family Code. If you educate yourself only after you become married you may still enter into a contract, but with limited options and greater risk of enforceability issues.

Further Reading » Separate Property Or Community Property?

It is important to know your rights, responsibilities, and options regarding the marital contract. Our family law team at Naimish & Lewis can advise you on this and other family law matters. To schedule an initial consultation with an attorney at our firm, please contact us.

Robert J. Allison, Esq.

Mr. Allison is a resolution-oriented associate attorney in our Family Law Practice. Even-keeled and fact focused, he is able to assist our clients understand their rights and obligations through the stress and smoke and mirrors presented in their divorce, custody, and domestic violence matters. During the initial consultation, and again once facts and evidence have been collected, Mr. Allison provides various strategies to help clients present their cases, considering cost, time, and client needs. He prides himself in not making false promises to his clients and is unafraid to speak the raw and sometimes harsh reality of how a Court will decide a matter given a specific set of facts and circumstances, both to his clients and to opposing parties. Many potential clients share that they are unhappy with their previous attorneys because they felt a lack of communication, an uncertainty about the family law process and timeline, and they do not understand the strategy in their case or the invoices they receive. While the legal process is complex, Mr. Allison attempts to reduce the confusion through a reasonable case management process involving client participation, because a family law case is often the most difficult period of time in a client’s life.