Post-Marital Agreements FAQ

• My spouse and I are contemplating getting divorced – can we get a post-nuptial agreement instead?
• What is a fiduciary duty and how does that effect post-marital agreements? 

My spouse and I are contemplating getting divorced – can we get a post-nuptial agreement instead?

No.  Post-nuptial agreements cannot be executed in contemplation of divorce or legal separation.  This means if you or your spouse intends to get divorced or separated, you cannot use a post-nuptial agreement to govern the distribution of your property and determine spousal support. 

What is a fiduciary duty and how does that effect post-marital agreements? 

Under California law, spouses owe each other duties similar to duties owed between business partners.  These duties are called fiduciary duties.  Spousal fiduciary duties include a duty of good faith and fair dealing, loyalty, care, management and control of community property and full and fair disclosure.  These fiduciary duties may impact the validity of your post-marital agreement in a number of different ways.  For example, California law presumes that there is undue influence, and therefore a breach of fiduciary duty, where one spouse benefits from a transaction at the expense of the other spouse.  This means that if the terms of the post-marital agreement give you a benefit and harm your spouse, you may be liable for breach of fiduciary duty.

The Orange County attorneys at Wilkinson & Finkbeiner, LLP are experienced and knowledgeable about the requirements for a valid post-nuptial agreement and can assist you in reaching an agreement to accomplish your goals while ensuring that you fulfill your duties to your spouse.