Marriage brings joy, commitment—and let’s be honest—responsibilities. It represents both a romantic commitment and a legal partnership, and as with any partnership, having clear agreements can strengthen foundations and provide security.
Prenuptial and postnuptial agreements help couples define financial expectations and protect their futures. But what makes these documents different?
Let’s examine these marital agreements, their unique qualities, and how they work in California.
What Is a Prenup?
A prenuptial agreement is signed before you say “I do.” Think of it as a financial roadmap you create as a couple before any legal ties exist.
It can cover things like:
- What happens to your separate property
- Who takes on what debts
- Whether either of you would receive spousal support
- How business interests would be handled
People turn to prenups for all kinds of reasons. Maybe you’ve built a successful business. Maybe you’re entering a second marriage and want to protect your children’s inheritance. Or maybe you just want everything spelled out clearly.
If you’re wondering if you can get a prenuptial agreement after marriage, you can’t. But there’s another option: a postnup.
What Is a Postnup?
A postnuptial agreement is created after marriage. It’s not just a backup plan. It’s often a tool couples use when their situation changes.
Some common reasons:
- One of you inherited a large sum
- A new business venture came into play
- You simply never got around to a prenup
It can include all the same terms as a prenup—property division, spousal support, asset protection—but it’s approached from within the marriage.
Want to learn more about postnups specifically? Read: The Complete Guide to a Postnuptial Agreement in California.
Prenup vs. Postnup: What’s the Real Difference?
Here’s a quick side-by-side:
Prenup vs. Postnup: What’s the Real Difference?
| Feature | Prenup | Postnup |
| Timing | Signed before marriage | Signed after marriage |
| Purpose | Set financial expectations early | Adjust plans after the marriage begins |
| Emotional Timing | Often part of wedding prep | Often tied to relationship or financial shifts or renewed commitment |
| Enforceability in CA | Easier to enforce with proper steps | Held to a higher standard by courts |
| Waiting Period | Requires a 7-day review window before signing (since 2002) | No specific waiting period, but fairness and consent are closely examined |
| Independent Counsel | Required unless waived in writing (and only under specific conditions) | Strongly recommended for both parties to avoid claims of coercion or unfairness |
How California Law Views These Agreements
California is a community property state. That means most assets or debts acquired during the marriage are presumed to be shared. A prenuptial agreement sets the rules before that sharing begins—courts often see it as proactive.
A postnuptial agreement, though, is signed after marriage—when both spouses already owe each other a fiduciary duty. That means you’re legally expected to deal with one another with total honesty and fairness. Because of that duty, courts take a closer look at postnups before deciding to enforce them.
Here’s what the court expects to see:
- Full disclosure of all assets, income, debts, and liabilities—no omissions, no hidden accounts.
- Fair and balanced terms, not something clearly tilted in favor of one spouse.
- Proper execution, meaning both parties signed voluntarily and without pressure.
- While independent legal counsel isn’t required for postnups under California law, it can make a big difference.
Important note: Whether you’re drafting a prenup or postnup, child support cannot be predetermined. California law doesn’t allow parents to waive or limit child support in advance. The court will decide that based on the child’s best interest when and if the time comes.
Here are seven common mistakes that can make a postnup fall apart.
When to Choose a Prenup
Prenuptial agreements make particular sense in these scenarios:
Prior Marriages and Children
If you have children from previous relationships, a prenup helps ensure your assets are protected for their inheritance.
Business Owners
Business owners often use prenups to keep their business interests separate from marital property, protecting business partners and operations.
Wealth Disparities
When one partner brings substantially more assets to the marriage, a prenup can address how those premarital assets remain protected.
Debt Protection
If one partner carries significant debt, a prenup can shield the other from becoming responsible for those obligations.
Prenups work best when couples have honest conversations early in their engagement and approach the agreement as financial planning rather than distrust.
Related: Mistakes to Avoid When Creating a Prenuptial Agreement
When to Choose a Postnup
Postnuptial agreements serve different situations:
Missed Opportunity for Prenup
Many couples intend to create a prenup but run out of time before the wedding. A postnup offers a second chance to establish these agreements.
Financial Situation Changes
Major financial changes after marriage—like starting a business, receiving an inheritance, or career changes—might prompt a postnup to address new circumstances.
Relationship Reconciliation
Some couples use postnups as part of reconciliation efforts, clarifying financial expectations while rebuilding trust.
Estate Planning Updates
As family dynamics change (new children, aging parents needing care), postnups help couples restructure financial responsibilities.
Postnups work when both spouses commit to transparency and fairness, recognizing that the agreement serves their shared long-term interests.
Common Misconceptions About Marital Agreements
“They Signal A Lack of Trust”
Both agreements are actually about clarity and security. Many happily married couples maintain these agreements without ever needing to use them.
“Only Wealthy People Need Them”
While these agreements help protect significant assets, they benefit anyone who wants financial clarity, has a business, owns property, or has children from previous relationships.
“Once Married, It’s Too Late”
This myth prevents many couples from creating valuable financial arrangements. Postnuptial agreements offer similar protections after marriage.
“They’re Not Enforceable”
When properly created, both prenups and postnups are legally binding. Courts generally uphold agreements that meet legal requirements and demonstrate fairness.
“Postnups Aren’t As Strong As Prenups”
While postnups face higher scrutiny, properly executed postnuptial agreements hold up in California courts when they meet legal requirements.
Is a Postnup as Good as a Prenup?
The answer depends on your situation.
A properly executed postnup can be as legally binding as a prenup, but postnups face additional challenges:
- The fiduciary duty between spouses creates higher standards for fairness.
- Courts may apply greater scrutiny to ensure neither spouse used the marital relationship to gain advantage.
- The presumption of undue influence must be overcome with evidence of fairness and disclosure.
- California courts examine whether each spouse truly understood what rights they were waiving.
That said, a carefully crafted postnup with full disclosure, independent legal counsel, and fair terms can be as effective as a prenup. The key lies in proper execution and adherence to legal requirements.
Why Your Lawyer Matters
These aren’t templates you download and hope for the best. One oversight—missing financial details, vague language, or a rushed signature—can unravel everything you intended to protect.
At Provinziano & Associates, every agreement is built based on your life, your assets, and your goals. They are strategically structured to stand up in court—and designed to give you peace of mind long before it ever gets there.
If you want your agreement to be enforceable in California, don’t skip independent legal counsel. Courts are far more likely to uphold an agreement when each spouse had their own attorney reviewing the terms.
Even if it’s not technically required for a postnup, it’s one of the smartest protections you can put in place.
Thinking about a prenup or postnup? Let’s make sure it’s done right—tailored, enforceable, and built for your life. Call 310-820-3500 or schedule your confidential case evaluation online.
You’re not just planning for love. You’re planning for life.
Disclaimer: This blog is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. Every family law case is unique, and outcomes depend on individual circumstances. Legal representation with Provinziano & Associates is established only through a signed agreement.
For personalized advice, please contact our team at 310-820-3500 to schedule a case evaluation.
