Your spouse wants you to sign a postnuptial agreement, and her attorney has already prepared it. The document may address your home, retirement accounts, business interests, or what happens financially if the marriage ends.
But if her lawyer wrote the agreement, does that mean it is unfair? And can you refuse to sign until you have your own attorney?
In California, your spouse’s lawyer can draft a postnuptial agreement, but that lawyer does not represent you. You have the right to review the proposed terms, seek independent legal advice, negotiate changes, or decline to sign.
Understanding these protections is especially important because postnuptial agreements are subject to strict legal scrutiny.
What Is a Postnuptial Agreement?
A postnuptial agreement, often called a postnup, is a contract spouses enter into after getting married.
It may address how certain assets, debts, income, or property interests will be treated during the marriage or in a future divorce.
Unlike a prenuptial agreement, which is signed before marriage, a postnup is negotiated after spouses already owe each other important legal duties.
California Family Code § 721 recognizes a fiduciary relationship between spouses, including obligations of good faith and fair dealing.
Those duties can significantly affect whether a postnuptial agreement is enforceable.
Can Her Attorney Draft the Entire Agreement?
Yes. One spouse’s attorney may prepare the initial draft.
However, the attorney’s responsibility is generally to the spouse who hired them, not to both parties.
Even if the lawyer explains the document or answers some questions, you should not assume that the lawyer is protecting your financial interests.
The proposed agreement may contain provisions favoring your spouse, such as assigning separate-property status to assets that would otherwise be community property.
You are not required to accept those terms simply because an attorney prepared them.
You may ask for revisions, request supporting financial records, and have a separate attorney review the agreement before making a decision.
Do You Have to Hire Your Own Lawyer?
California does not impose a universal independent-counsel requirement for every postnuptial agreement.
However, having your own attorney is strongly advisable, especially when the agreement changes substantial property rights.
An independent lawyer can explain what you may be giving up, identify unfavorable provisions, and help negotiate terms that reflect your interests.
Independent representation can also become relevant if a court later examines whether the agreement was entered into knowingly and voluntarily.
Importantly, the rules governing postnuptial agreements are not identical to California’s statutory requirements for prenuptial agreements.
What If You Were Pressured to Sign?
Pressure can matter, but not every uncomfortable negotiation amounts to legally actionable coercion or undue influence.
For example, a spouse saying they want financial clarity before continuing the marriage does not automatically invalidate an agreement.
However, threats, deception, withholding essential information, or exploiting a spouse’s vulnerability may raise serious concerns.
Courts may consider whether you had sufficient time to review the document, understood its consequences, and had a meaningful opportunity to obtain advice.
If you feel pressured, you can decline to sign while you obtain independent legal guidance.
Does Your Spouse Have to Disclose Her Finances?
Financial transparency is a critical part of negotiating a postnuptial agreement.
California spouses owe each other fiduciary duties that include important disclosure obligations concerning community property and relevant transactions.
If your spouse asks you to waive an interest in a business, retirement account, or real estate, accurate information about that asset may be essential to an informed decision.
Concealed assets, misleading valuations, or incomplete financial information can create grounds for challenging an agreement.
Both spouses should take disclosure seriously rather than relying on informal assurances about what property is worth.
Why Legal Guidance Matters
A postnuptial agreement can affect years of accumulated property rights and future financial security.
Men’s Legal Center helps California husbands evaluate proposed postnups, understand community property interests, review disclosure concerns, and negotiate agreements with greater clarity.
Independent legal advice is particularly valuable when your spouse’s attorney prepared the document, or the agreement would substantially change how marital assets are divided.