THIS POSTNUPTIAL AGREEMENT (the "Agreement") MADE ON THIS _____ day of ______________, 20___
BETWEEN:
_________
- AND -
_________
of _________
BACKGROUND
A) This Agreement is made between _________ and _________ (together the "Parties" and separately a "Party") who have the intention to marry each other in the near future.
B) The Parties intend for this Agreement to come into effect upon execution by both Parties.
C) The Parties wish to enter into this Agreement voluntarily to provide for the ownership and division of properties, income, estate, and financial obligations between them, including property that will be owned or acquired by either or both of them.
D) As a result of the relationship, the Parties wish to establish their respective rights and responsibilities that may result from it.
E) The Parties express their intent for the distribution of any property that either or both of them may own will be governed by the terms of this Agreement. To the extent permitted by statutory or case law, the Parties specifically intend that any applicable statutes, either under Federal or State legislation, will not apply to them.
F) The Parties agree that they have been provided with at least seven days to review this Agreement.
G) The Parties also agree that they have had an opportunity to hire their own lawyer and receive independent legal advice with respect to the terms of this Agreement.
H) The Parties have disclosed to their satisfaction all assets and liabilities that each may have, and voluntarily and expressly waive any other rights to disclosure of the property or financial obligations of each other beyond the disclosure provided.
I) Each Party agrees and affirms THAT:
a) The Parties did execute this Agreement voluntarily;
b) This Agreement was not unconscionable when it was executed;
c) Prior to the execution of this Agreement, both Parties have disclosed to their satisfaction all property or financial obligations of the other Party;
d) They have full knowledge of all the facts and circumstances pertinent to the property or financial obligations of the other Party;
e) The Parties have entered into this Agreement freely and under no duress or undue influence on their decision by the other Party;
f) The Parties acknowledge that this Agreement shall continue to be effective even upon termination of marriage whether by death, divorce, or otherwise.
THEREFORE, in consideration of the upcoming marriage, and the mutual commitments and promises contained in this Agreement, the Parties agree as follows:
OWNERSHIP OF PROPERTY
1) The Parties agree that this Agreement will determine the ownership of the property upon the death of a party or if the Parties separate.
2) Except as otherwise provided in this Agreement, all property will be treated as owned exclusively by either one of the Parties (the "Separate Ownership"), except where:
a) it is Joint Ownership; or
b) there is proof of shared legal ownership.
3) Nothing contained in this Agreement shall preclude the Parties from making gifts to the other during their lifetime, at their death, or for benefit of the other party.
4) Unless a Party can reasonably show that they exclusively own a piece of property, where either Party commingles jointly owned property with Separate Ownership, any commingled property will be presumed to be Joint Ownership.
DEBTS
5) The Parties acknowledge that this Agreement shall determine the responsibility of any debt that may occur upon the death of a party or if the Parties separate.
6) All debts jointly acquired, whenever acquired, will be treated as joint debts (the "Joint Debts") and owed by both Parties.
7) Except as stated elsewhere in this Agreement, all debts shall be considered as debts owed exclusively by either one of the Parties (the "Separate Debts"), except in the following circumstances:
a) it is Joint Debt; or
b) there is proof of shared legal responsibility between the Parties.
MARITAL OWNERSHIP RELEASE
8) The Parties agree that they are aware of the community ownership laws of the State of California, and that they have the intention to not apply the community ownership laws to the ownership and division of their property, either jointly or separately owned, nor to their future property, and the Parties further agree that it is their intention by the terms of this Agreement to contract out of the community ownership of the State of California, and to make full disclosure of all of their properties, income, estate, and financial obligations previously and presently owned by either of the Parties or to be acquired by either of the Parties in the future.
DOWER, CURTESY AND HOMESTEAD RELEASE
9) The Parties waive all dower, courtesy, and homestead rights under any statute of the State of California, or any other jurisdiction, that each would have in and to the property in the name of the other, or on their behalf jointly or as tenants in common, except for this Agreement.
SEVERABILITY
10) If any court of law finds invalid, unenforceable, or void any clause of this Agreement, such decision will not have the effect of invalidating or voiding the remainder of this Agreement, and The Parties agree that the section so held to be invalid, unenforceable, or void, will be deemed amended only to the extent required for purposes of validity and enforcement in the jurisdiction of such decision.
GOOD FAITH
11) The Parties create a fiduciary relationship through this Agreement, in which each Party agrees to act with the utmost good faith and fair dealing toward the other Party in all aspects of this Agreement.
FURTHER DOCUMENTATION
12) The Parties agree to attach such additional documentation as is reasonably necessary to give full force and effect to each term of this Agreement.
ENUREMENT
13) This Agreement will inure to the benefit of the Parties, their respective heirs, executors, administrators and assigns and will be binding.
GOVERNING LAW
14) This Postnuptial Agreement, and the status, ownership, and division of property between the Parties wherever either or both of them may from time to time reside, will be governed by the law of the State of California.
TERMINATION OR AMENDMENT
15) The amendment of this Agreement can only be carried out in writing and signed by each of the parties. Their attorneys-in-fact and other legal representatives are not allowed to amend it.
ENTIRE AGREEMENT
16) The Agreement constitutes the entire arrangement and understanding between the Parties and replaces all prior communications, contracts, or agreements between these Parties regarding the subject matter of this Agreement, whether oral or written.
THE PARTIES HERETO HAVE CAUSED THIS INSTRUMENT TO BE EXECUTED ON THE ________ DAY OF ________________, ________.
____________________________________
_________
____________________________________
_________
CERTIFICATE OF INDEPENDENT LEGAL ADVICE
The State of California
County of _________________
I, _________________________, of the City of ___________________, in the State of California, Attorney, DO HEREBY CERTIFY:
THAT I was consulted this day in my professional capacity by _________, named in the document, being a Postnuptial Agreement, separate and apart from _________. I inquired as to _________'s legal rights and responsibilities under the terms and conditions of this Agreement, and I acted exclusively for _________, fully explaining to _________ the spirit and consequence of said Postnuptial Agreement. _________ executed it in my presence, and acknowledged that they were executing it of their own free will and without any influence from _________, or any other person.
DATED at the City of ___________________, in the State of California, this _____ day of ______________, 20___.
____________________________________
ATTORNEY
Printed Name: ________________________
CERTIFICATE OF INDEPENDENT LEGAL ADVICE
The State of California
County of _________________
I, _________________________, of the City of ___________________, in the State of California, Attorney, DO HEREBY CERTIFY:
THAT I was consulted this day in my professional capacity by _________, named in the document, being a Postnuptial Agreement, separate and apart from _________. I inquired as to _________'s legal rights and responsibilities under the terms and conditions of this Agreement, and I acted exclusively for _________, fully explaining to _________ the spirit and consequence of said Postnuptial Agreement. _________ executed it in my presence, and acknowledged that they were executing it of their own free will and without any influence from _________, or any other person.
DATED at the City of ___________________, in the State of California, this _____ day of ______________, 20___.
____________________________________
ATTORNEY
Printed Name: ________________________
CERTIFICATE OF ACKNOWLEDGMENT
The State of California
County of _________________
On the _____ day of _____________________ in the year ________, before me, __________________________, personally appeared _________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument, and acknowledged that he/she executed the same in his/her capacity, and that by his/her signature of the instrument, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
NOTARY PUBLIC
Print Name:_________________
My Commission Expires:
________________________
CERTIFICATE OF ACKNOWLEDGMENT
The State of California
County of _________________
On the _____ day of _____________________ in the year ________, before me, __________________________, personally appeared _________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument, and acknowledged that he/she executed the same in his/her capacity, and that by his/her signature of the instrument, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
NOTARY PUBLIC
Print Name:_________________
My Commission Expires:
________________________
Special Notes on Postnuptial Agreements governed by the State of California
The State of California has chosen to adopt the Uniform Premarital Agreement Act (UPAA).This statute was created to standardize the requirements of postnuptial agreements between states. As such, this Agreement has been worded based on the notion subscribed to by the UPAA that postnuptial agreements should be entered into voluntarily and with full knowledge of all of the facts and circumstances pertinent to it. Also, The Parties acknowledge that they have made full disclosure of all of their properties, income, estate, and financial obligations.
Signing the Postnuptial Agreement in front of your lawyer and receiving a Certificate of Independent Legal Advice from your lawyer is the best option. Alternatively, at least one of the Parties must receive independent legal advice and the other party must sign a "Waiver of Independent Legal Advice" in front of a Notary Public. In addition, The other party’s lawyer must send a written explanation of the effect of the Agreement to the Party that is waiving legal advice.