A postnuptial agreement may not sound like the most romantic thing in the world, but it can be a very helpful document for many couples. It’s most commonly used when one spouse suddenly comes into a large inheritance or is taking on a lot of new debt, starting a business, or leaving the workforce to raise the children. A postnuptial can give both of you peace of mind, and a family lawyer in San Mateo, CA can help you make sure that your agreement fulfills everyone’s needs and will be valid here in California.
How Does a Family Lawyer in San Mateo, CA Help?
A family lawyer will have experience not only in crafting these kinds of agreements but also in defending them in court. Beyond that, your lawyer understands what kind of issues typically come up in a divorce and will be able to give you sound advice on the best way to protect yourselves in case the worst does happen.
At the same time, your family lawyer is also on your side and is interested in seeing your marriage succeed. It’s a common misconception that family law attorneys want to see more couples get divorced because it means more money for them. In reality, family law is about so much more than divorce, and a good family lawyer sees it as a win when relationships are preserved.
This means you can expect your family law attorney to provide you with sound legal advice and even a bit of personal advice in these situations. Your lawyer will make sure that any agreement you come to is equitable and that the agreement itself will pass muster with the California courts and be enforceable.
What a Lawyer Can Do
Obviously, the first thing that a lawyer does is provide legal advice. But that’s just the beginning. Your lawyer will also make sure all parties involved have fully disclosed everything in order for the agreement to be valid. Your lawyer will, of course, actually write out the agreement itself and help negotiate terms that are fair to everyone.
It’s always wise for both parties to have their own lawyer. A lawyer must be dedicated to a single client and their best interests. Just because the couple have separate lawyers, however, does not mean that the situation has to be adversarial in any way. It just means that these agreements can be complicated, and the ultimate consequences of any decision can be difficult to foresee in their entirety. Each lawyer should be concentrating solely on the best interests of their own client to minimize confusion or the possibility that any terms of the postnup will be unfair.
Your lawyer will also make sure that the agreement follows all of California’s legal requirements and that it has nothing in it that could be used to invalidate any part of the agreement. Most notably, an agreement of this sort cannot contain any clauses dealing with child support. Child support cannot be agreed upon in advance by the parents because it is something the parents owe to their child. If the parents should separate, the court will decide child support based on what is in the best interest of the child.
Finding the Right Family Lawyer
As you look for a lawyer, you want someone who has a background in writing these sorts of agreements, both postnup and prenup. Someone who has done this before will be aware of potential pitfalls to avoid and will also be able to get through the process smoothly and quickly. You also want to look for a family lawyer with familiarity in the local court, since they will have an idea of how the courts have interpreted these agreements and their clauses in the past.
While specific experience in these sorts of agreements is important, you also want a family law attorney with a lot of of general experience in divorce and family law. This will mean the lawyer has seen what happens when poorly written postnuptial agreements fail and knows what to watch out for so that yours will not.
When you talk to a potential lawyer, pay attention to their communication technique and ask a few questions to be sure they will be a good fit for you in this delicate matter. It’s good to feel rapport with your lawyer. You should feel listened to, and the lawyer should be able to explain difficult legal concepts to you in a way that you can understand. It also never hurts to read reviews and note if previous clients seem satisfied with the service they’ve gotten.
What Goes Into a Postnup?
There are a couple of important steps in this process that your lawyer will guide you through. Each has to be followed in order for the postnup to be valid and enforceable.
Full Disclosure
This is a key requirement. Full disclosure means that both partners have to reveal all assets as well as all debts. This includes not only shared property but also any separate property that they acquired before the marriage or that has been gifted to them or inherited.
Absolutely everything has to be revealed, and if anything is withheld, then the agreement itself will likely become invalid. A lawyer can be a great help here in making sure that you have asked all the right questions to be sure your spouse is fully disclosing everything (and making sure that you have done the same). It’s easier to forget about something than you might think!
Negotiations and Drafting
A postnup agreement details how you’re going to divide your assets if you should get divorced, and this means you and your spouse will need to agree on how you want that to happen. It’s easier to get into disagreements here than you might think, even if you both want to come to an agreement and go into the process believing that you do agree.
For one thing, full disclosure may reveal that there are assets you hadn’t thought about but which must be considered. For another, as your lawyer asks questions you may become aware of issues you hadn’t considered, and it may turn out that you and your spouse don’t agree on those issues. An attorney will help you negotiate and then come to a fair agreement.
Even more importantly, your lawyer will work with your spouse’s lawyer to write out an agreement that will be legally enforceable under California law and that is in both of your best interests. Your lawyer will also make sure that all the i’s are dotted and the t’s are crossed legally so that your agreement can’t be challenged in court later. It’s important to show that the two of you came to the agreement completely of your own accord, with no duress being applied by either partner.
For help with your postnuptial agreement, reach out to us at the Seeley Family Law Practice APC in San Mateo right away for a consultation. Yvonne Seeley is Certified by the State Bar of California Board of Specialization in Family law and has been representing families in courtrooms and in mediation for more than 35 years.