If you and your spouse put a prenuptial agreement in place before you married as young adults, it may no longer meet one or both of your needs if you’re more than a decade (or multiple decades) into your marriage. That doesn’t mean, however, that it can’t be used to set the terms of a divorce.
Unless you included a sunset provision that causes the prenup to expire at a specified time (like on your tenth anniversary), a court could still consider it valid. But would it leave you with a fair settlement given the changes that have occurred in your lives throughout the years? That might warrant a court battle you don’t have the time, money or energy to pursue.
You don’t have to be stuck with an outdated prenup. You can replace it with a postnuptial agreement. While some people think couples only get a postnup as preparation for an imminent divorce, it can be a valuable way to reset your expectations, clarify what each of you has brought to the marriage and avoid being bound by California’s community property law.
When is it wise to “trade in” your prenup for a postnup?
It’s a good idea to review your prenup and consider replacing it with a postnup if any of the following apply and are not addressed in the prenup:
- One spouse is making considerably more money than the other.
- One or both spouses have started their own business or professional practice.
- One or both spouses have received a considerable inheritance.
- One spouse has become a stay-at-home parent or family caregiver or has become chronically ill or disabled.
- One spouse has accumulated considerable debt on their own.
- One spouse has paid off the other’s individual debts.
- One spouse sacrificed their own education or career goals to help the other become successful.
- One or both spouses have specific assets they want to keep in a divorce.
Like a prenup, a postnup can address property division and spousal support. It is not meant to address child custody or support, as those are intended to be decided or approved by a judge based on the child’s best interests.
When putting a postnup in place, as with a prenup, it’s crucial for you and your spouse to each have your own legal representative to protect your rights and your future.