ACKNOWLEDGEMENT OF RIGHTS AND OBLIGATIONS
RE: POSTNUPTIAL AGREEMENT BETWEEN:
AND .
I , hereby acknowledge my understanding of the following
rights and obligations of the parties to a Postnuptial Agreement under the laws of the State of
California:
1. ASSETS
California is a community property state. All property acquired by a married person
during their marriage while living in California is presumed to be community property.
Upon death or divorce, the value of all community assets is divided equally in terms
of value between both spouses.
Both marital partners are equal agents of the partnership, and able to bind the partnership
if acting within the scope of his or her authority and if acting for the joint benefit of the
family. The California community property system adds to joint ownership the right of
equal management and control.
All benefits which come from either spouse's employment during the marriage are
community property to the extent they are earned and/or accrued during the marriage.
This can include retirement benefits, pensions, savings plans, stock purchase plans, 401k
plans, sick and vacation pay, and stock options. If the benefits are not fully vested at the
time of a separation, an allocation is made between the community and separate interests.
Separate property is property: a) owned before marriage, b) acquired during marriage by
gift or inheritance, or c) acquired after separation. Earnings, income or appreciation from
separate property sources remains separate property. If there is a dispute about whether
an asset is separate property, you must have proof that you acquired the separate property
in one of these ways, and have documentation to trace the separate property back to the
original source.
If you use separate property to acquire property in joint names during the marriage, you
are only entitled to reimbursement for the amount of the separate property contributed
(no interest or appreciation) and again, you must be able to trace the contribution back to
the separate property source.
If you own a business prior to marriage, the community may acquire an interest in the
business if the business increases in value during the marriage, depending upon the
reason for the increase in value.
If you own a home in your own name and community funds are used for mortgage
payments or to pay down the principal on a loan, the community will acquire an interest
in the appreciation in the value of the property, but only in the ratio that the amount paid
Acknowledgement of Rights and Obligations Page 1 of 3
on principal bears to the total purchase price. The community will also be reimbursed for
the amount paid down on principal.
The way you hold title to real property will affect disposition of property upon death of a
spouse. For example, property held as joint tenants will automatically become the
property of the surviving spouse. Property held as community property or tenants in
common will be distributed according to the will or trust of the spouse, or according to
the laws governing intestate succession in the absence of a will or a trust.
2. DEBTS
Debts incurred during the marriage are presumed to be community property. The only
debts which would normally not be community property are debts which are completely
unrelated to the community (such as debts related to one person's separate property,
support obligations, gifts or expenses related to a romantic relationship other than the
marriage, or criminal acts which did not have a financial benefit to the community). This
means that a spouse could incur a debt for a purpose the other spouse does not approve
and it would still be a community debt.
Debts incurred before marriage remain the responsibility of the person who originally
incurred them. If community funds are used to pay these debts, sometimes there is a right
of reimbursement for the community and sometimes not (special rules apply depending
upon the type of debt and other assets/income which was available to pay it.)
3. DIVISION OF ASSETS AND DEBTS UPON DIVORCE
In dissolution of a marriage, the court is empowered to allocate assets of comparable
value to the former husband and wife to make the overall division of the gross marital
estate substantially equal. It need not divide each asset. For example, when dividing a
business might impair its value, the court will generally preserve the ongoing business
interests if the court can still make an overall equal division of the marital estate.
If you own a home together and one spouse continues to reside in the home after
separation, that spouse could owe "rent" to the community, subject to an offset for
payment of the costs of the home.
If one spouse pays on community debts after separation, he or she will generally be
reimbursed for those payments (the biggest exception would be if the debt payments are
in lieu of support.).
4. SUPPORT
Each spouse owes a duty of support to the other. Support can be ordered after separation.
The amount and duration of support is set by the court and can depend on many factors.
5. CHILDREN
Acknowledgement of Rights and Obligations Page 2 of 3
Each parent is entitled to custody of the children. Upon a separation, the court determines
custody according to the best interest of the child. Child support is payable according to a
standardized formula.
6. POSTNUPTIAL AGREEMENTS
Under California law, the property rights of husband and wife prescribed by statute may
be altered by a postnuptial agreement.
A postnuptial agreement may be recorded in the office of the recorder of each county in
which real property affected by the agreement is situated if the postnuptial agreement is
executed and acknowledged or proved in the manner that a grant of real property is
required to be executed and acknowledged or proved. Recording or nonrecording of a
postnuptial agreement or other marital property agreement has the same effect as
recording or nonrecording of a grant of real property.
Information on the enforceability of postnuptial agreements is contained in the
“Postnuptial Agreement Disclosure” that was received and signed concurrently with this
“Acknowledgement of Rights and Obligations.”
7. BY EXECUTING THE POSTNUPTIAL AGREEMENT YOU WILL BE WAIVING
ALL OF THE FOLLOWING RIGHTS:
(a) Division of community and quasi-community property; and
(b) The award of marital assets by the court on such conditions as it feels proper to
provide for a substantially equal distribution of property.
This statement of Rights and Obligations has been provided by
.
I, , hereby acknowledge receipt of this Declaration of
Rights and Obligations on this the day of , 2
Signature
Type or Print Name
Acknowledgement of Rights and Obligations Page 3 of 3
ADVISEMENT AND WAIVER OF RIGHT TO
INDEPENDENT COUNSEL
RE: POSTNUPTIAL AGREEMENT BETWEEN:
AND .
NAME OF DECLARANT: .
RIGHT TO BE REPRESENTED BY AN ATTORNEY. I have been advised to seek
independent counsel regarding a proposed postnuptial agreement between myself and
. I am either currently in a position to afford independent
counsel of my own choice or, if I can not afford independent legal counsel, I understand that
has agreed to compensate me for the cost of independent
counsel to act solely under my direction and control.
WAIVER. I understand that I am giving up the rights stated above and hereby waive the right
to independent counsel.
Signature of Declarant
Type or Print Name
State of California
County of
On , 20 before me,
(here insert name and title of the officer), personally appeared
,
who proved to me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his
authorized capacity , and that by his signature on the instrument the person , 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.
Signature (Seal)
Advisement and Waiver of Right to Independent Counsel Page 1 of 1
POSTNUPTIAL AGREEMENT DISCLOSURE
AS STATED BELOW, IT IS VERY IMPORTANT THAT YOU BE REPRESENTED BY
INDEPENDENT COUNSEL, OR WAIVE SUCH RIGHT. SEVEN (7) DAYS MUST PASS
BEFORE EXECUTION OF THE AGREEMENT AS PROVIDED BELOW.
NOTICE:
The parties understand fully the laws of California dealing with the validity of postnuptial
agreements, including, but not limited to the following:
(a) A postnuptial agreement is not enforceable if the party against whom enforcement is
sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and, before execution
of the agreement, all of the following applied to that party:
(A) That party was not provided a fair, reasonable, and full disclosure
of the property or financial obligations of the other party.
(B) That party did not voluntarily and expressly waive, in writing, any
right to disclosure of the property or financial obligations of the other
party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an
adequate knowledge of the property or financial obligations of the
other party.
(b) An issue of unconscionability of a postnuptial agreement shall be decided by the court
as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that a postnuptial agreement
was not executed voluntarily unless the court finds in writing or on the record all of
the following:
(1) The party against whom enforcement is sought was represented by
independent legal counsel at the time of signing the agreement or, after being
advised to seek independent legal counsel, expressly waived, in a separate
writing, representation by independent legal counsel.
(2) The party against whom enforcement is sought had not less than seven
calendar days between the time that party was first presented with the
Postnuptial Agreement Disclosure Page 1 of 2
agreement and advised to seek independent legal counsel and the time the
agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented by legal
counsel, was fully informed of the terms and basic effect of the agreement as
well as the rights and obligations he or she was giving up by signing the
agreement, and was proficient in the language in which the explanation of the
party's rights was conducted and in which the agreement was written. The
explanation of the rights and obligations relinquished shall be memorialized in
writing and delivered to the party prior to signing the agreement. The
unrepresented party shall, on or before the signing of the postnuptial
agreement, execute a document declaring that he or she received the
information required by this paragraph and indicating who provided that
information.
(4) The agreement and the writings executed pursuant to paragraphs (1) and (3)
were not executed under duress, fraud, or undue influence, and the parties did
not lack capacity to enter into the agreement.
(5) Any other factors the court deems relevant.
WE HAVE FULLY READ AND UNDERSTAND THE ABOVE LAWS AND WERE
PROVIDED THIS DISCLOSURE, A COPY OF THE PROPOSED POSTNUPTIAL
AGREEMENT AND WERE ADVISED TO SEEK INDEPENDENT COUNSEL AT LEAST
SEVEN (7) DAYS BEFORE EXECUTION OF THE ACTUAL AGREEMENT.
Date:
Signature of Husband
Print or Type Name Date:
Signature of Wife
Print or Type Name
DATE SIGNED MUST BE AT LEAST SEVEN DAYS BEFORE SIGNING THE ACTUAL
AGREEMENT.
Postnuptial Agreement Disclosure Page 2 of 2
POSTNUPTIAL AGREEMENT
THIS AGREEMENT, made this day of , 2 ,
between of
(Name) (Street Address)
("first party or Wife"), and ,
(City, State and Zip Code) (Name)
of , ,
(Street Address) (City, State and Zip Code)
("second party or Husband"),
W I T N E S S E T H
WHEREAS, Wife and Husband are now married, having been married on the
day of , 2 , in County, ;
WHEREAS, the parties now desire to enter into this agreement to clarify and establish
their respective and collective rights, titles and interests in the separate and joint property of the
parties, in the event of divorce, death or other circumstances that would serve to terminate their
marriage, but without the present intent of either party to obtain a divorce or a legal separation;
and
WHEREAS, by execution of this agreement, the parties warrant and represent that they
have fully disclosed their financial status, including all assets, liabilities, and income, as listed in
the financial statement disclosures, attached as Exhibits A and B; and
WHEREAS, the parties agree that this agreement is to be effective upon execution in
accordance with the applicable laws of the State of California; and
NOW, THEREFORE, in consideration of the mutual promises, covenants, warranties and
other benefits and advantages accruing to each party, the parties agree as set forth above and
below as follows:
SECTION 1
SEPARATE PROPERTY
Each of the parties shall retain full control of his or her own separate property, real, personal
and mixed owned at the time of execution of this agreement and described in Exhibits A and B,
wherever the property is located. By the terms of this agreement, each party hereby waives and
relinquishes all claim to the separate property of the other. Each of the parties shall have and
hereby is given the right to lease, sell, convey, mortgage or otherwise dispose of their separate
property and receive all monies, rents, issues, income and profits thereof without any restrictions
and without interference from the other party. Each of the parties shall be responsible for satisfying
any tax obligations regarding his or her separate property. Despite any other provisions of this
instrument, this agreement shall not affect in any way the parties' rights, titles, powers, duties,
Postnuptial Agreement Page 1 of 8
discretions, immunities and interest in any property owned in joint tenancy or entirety with rights of
survivorship.
SECTION 2
JOINT PROPERTY
The parties agree that all property not specifically designated as separate property shall be
deemed to be part of their joint estates and considered their joint property. By the terms of this
agreement, the parties evidence their intent to grant the powers and rights to the parties as to jointly
owned property as is provided to spouses by operation of law.
SECTION 3
SEPARATION AND DIVORCE
To the extent permitted by law, this agreement shall govern the rights and obligations of the
parties in the event of death of either or both parties, separation or divorce. Although the parties do
not presently intend to separate or divorce, the parties agree this agreement shall be binding on both
parties in the event of separation or divorce, and shall, if applicable, and allowed by law, be
incorporated into any divorce decree.
In the event of separation or divorce, the parties agree that the following types of property
will be designated as either the separate or joint property of the parties:
(a) separate or joint All property acquired by each party in their own name and/or
with the use of their own assets or income prior to the execution of this agreement;
(b) separate or joint All property acquired by each party in their own name and/or
with the use of their own assets or income after the execution of this agreement;
(c) separate or joint All property acquired in the joint names of both parties
and/or with the use of joint assets or income prior to the execution of this agreement;
(d) separate or joint All property acquired in the joint names of both parties
and/or with the use of joint assets or income after the execution of this agreement;
(e) separate or joint All property acquired in exchange for or from the sale
proceeds of property owned by either party prior to the execution of this agreement;
(f) separate or joint All property acquired in exchange for or from the sale
proceeds of property owned by either party after the execution of this agreement;
(g) separate or joint All property acquired in exchange for or from the sale
proceeds of property owned by both parties before execution of this agreement;
(h) separate or joint All property acquired in exchange for or from the sale
proceeds of property owned by both parties after execution of this agreement;
(i) separate or joint All monetary awards or settlements resulting from a lawsuit
or other legal proceeding involving either party before the execution of this agreement
(j) separate or joint All monetary awards or settlements resulting from a lawsuit
or other legal proceeding involving either party after the execution of this agreement;
Postnuptial Agreement Page 2 of 8
(k) separate or joint All monetary awards or settlements resulting from a lawsuit
or other legal proceeding involving both parties before the execution of this agreement;
(l) separate or joint All monetary award or settlements resulting from a lawsuit
or other legal proceeding involving both parties after the execution of this agreement;
(m) separate or joint All insurance proceeds received by either party before
execution of this agreement;
(n) separate or joint All insurance proceeds received by either party after
execution of this agreement;
(o) separate or joint All insurance proceeds received by both parties before
execution of this agreement;
(p) separate or joint All insurance proceeds received by both parties after
execution of this agreement;
(q) separate or joint All gambling or lottery winnings received by either party
before execution of this agreement;
(r) separate or joint All gambling or lottery winnings received by either party
after execution of this agreement;
(s) separate or joint All earnings, salary, wages, bonuses, commissions or
dividends of either party received or earned before the execution of this agreement;
(t) separate or joint All earnings, salary, wages, bonuses, commissions or
dividends of either party received or earned after the execution of this agreement; and
(u) separate or joint Other:
.
Not applicable or The parties further agree that in the event of separation or divorce,
the following additional provisions shall apply notwithstanding the other provisions of this
agreement:
(a) The Wife shall be entitled to receive property of Husband described as follows:
[none or list property]
;
(b) The Husband shall be entitled to receive property of Wife described as follows:
[none or list property]
;
(c) The following property shall be sold and the proceeds, less expenses, divided
equally between the parties: [none or list property]
; and
Postnuptial Agreement Page 3 of 8
(d) The marital domicile shall be [occupied by Wife until her death or occupied by
Husband until his death or sold and the proceeds divided equally between Husband and Wife.]
SECTION 4
DEBTS AND LIABILITIES
The parties agree that each party shall pay the debts and liabilities incurred prior to
execution of this agreement in that party’s name as separate property, and in no case shall either
party be held liable for the debts and liabilities incurred in the other party’s name prior to execution
of this agreement, but that the parties shall jointly pay for the debts and liabilities incurred in both
parties’ names prior to the execution of this agreement as joint property; or the parties shall
jointly pay the debts and liabilities incurred prior to the execution of this agreement in one or both
party’s name as joint property.
The parties further agree that each party shall pay the debts and liabilities incurred after
the execution of this agreement in that party’s name as separate property, and in no case shall either
party be held liable for the debts and liabilities incurred in the other party’s name after the
execution of this agreement, but that the parties shall jointly pay for the debts and liabilities
incurred in both parties’ names after the execution of this agreement as joint property; or the
parties shall jointly pay for the debts and liabilities incurred after the execution of this agreement in
either one or both parties’ names as joint property.
SECTION 5
WAIVER OF MARITAL RIGHTS TO ESTATE
Not applicable or Each of the parties hereby waives and releases to the other any and
all of his or her right, title and interest of every kind and description in any and all property
acquired by the other party by inheritance or other means and to all or a portion of the property of
the other party which he or she may have, acquire, enjoy or be seized by reason of, or during or
after, their marriage, as the wife, husband, widow or widower of the other party, whether by way
of dower, courtesy, homestead, widow's allowance, statutory share or provision, descent,
community property inheritance, succession or otherwise.
SECTION 6
VOLUNTARY GIFTS
Nothing contained in this agreement is intended to preclude either party from voluntarily
making provision for, or granting powers or rights to, the other party in and by the party’s last will
and testament, a codicil thereto or otherwise.
SECTION 7
WAIVER OF RIGHTS TO PENSION/RETIREMENT FUNDS
Postnuptial Agreement Page 4 of 8
Not applicable or Each party agrees that he or she shall retain all of the rights, titles
and interests in the pension or other retirement plan or account in his or her name prior to and after
execution of this agreement, including any income accruing or accrued from such plan or account
and any increases in the value of such plan or account that result from depositing separate assets or
income. The parties agree that regardless of the source of funds used in any pension, retirement or
other deferred compensation plans or accounts, each party may maintain and continue such plans or
accounts and each party waives any rights, titles and interests in the other’s plans or accounts.
SECTION 8
ADDITIONAL OR FURTHER DOCUMENTS; COOPERATION
Each party agrees that he or she will sign and execute any further or additional
documents as may be necessary to put into effect the intended purposes of this agreement, such
as any deeds, bills of sale, assignments, affidavits, tax forms or other instruments of transfer and
title that are required in order to establish the parties’ respective rights in their separate and joint
property. The designation of property as separate or joint, however, shall not be affected by a
party’s failure to execute a necessary document, but the terms of this agreement shall control
such designation.
SECTION 9
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties pertaining to its subject
matter and it supersedes all prior contemporaneous agreements, representations and understandings
of the parties. No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by all parties.
SECTION 10
AMENDMENT OR REVOCATION
The parties agree to reserve the right to amend or revoke this agreement during the joint
lives of the parties and the parties’ marriage by a written amendment or revocation signed by both
parties.
SECTION 11
ABSENCE OF DURESS OR UNDUE INFLUENCE
The parties agree and state that each has freely and voluntarily entered into this
agreement. This agreement was executed free of any duress, coercion, collusion, or undue
influence, and the terms of this agreement are not unconscionable, but are fair, just, and
equitable. Both parties were provided prior to execution of this agreement a fair and reasonable
disclosure of the property and financial obligations of the other party and each party had, or
Postnuptial Agreement Page 5 of 8
reasonably could have had, an adequate knowledge of the property and financial obligations of the
other party.
SECTION 12
SEVERABILITY
If any portion of the agreement shall be held to be invalid or unenforceable for any
reason, then all the remaining parts or portions shall be construed, implemented and
administered in full force and effect as if such invalid or unenforceable portion did not appear
herein.
SECTION 13
CONTROLLING LAW
This agreement shall be controlled, construed and given effect by and under the laws of the
State of California. It is the intent of the parties that the Agreement be enforced to the fullest extent
permissible under applicable laws and public policies.
SECTION 14
SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, assigns, executors, administrators, and legal representatives.
SECTION 15
MISCELLANEOUS CLAUSES
(a)
;
(b)
;
(c)
;
(d)
;
(e)
;
(f)
;
(g)
;
Postnuptial Agreement Page 6 of 8
(h)
;
IN WITNESS WHEREOF, the parties have executed this agreement on the day and year
first above written.
HUSBAND (as used in this Agreement)
Signature
Print or Type Name WIFE (as used in this Agreement)
Signature
Print or Type Name
Note: This Agreement must be executed by the Parties before a notary public.
State of California, County of
On , 20 before me, (here insert
name and title of the officer), personally appeared
who proved to me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his
authorized capacity , and that by his signature on the instrument the person , 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.
Signature (Seal)
State of California, County of
On , 20 before me, (here insert
name and title of the officer), personally appeared
who proved to me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his
authorized capacity , and that by his signature on the instrument the person , 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.
Postnuptial Agreement Page 7 of 8
Signature (Seal)
APPROVED (optional)
Attorney for Husband
Print or Type Name APPROVED (optional)
Attorney for Wife
Print or Type Name
Postnuptial Agreement Page 8 of 8
EXHIBIT A
FINANCIAL STATEMENT DISCLOSURE OF WIFE
I. Assets (Describe all assets considered separate property of Husband, including approximate
value):
a. Real Estate (description to include address and enough information to clearly identify and value)
b. Bank Accounts and Cash (including life insurance cash value, and the numbers, names and banks of
all financial, checking and savings accounts)
c. Trusts (full name and any identifying number, description of assets and approximate value)
d. Vehicles (including year, make and model)
e. Other (including securities, stocks, bonds, pension/retirement plans or accounts, etc.)
Exhibit A Page 1 of 1
II. Liabilities or Debts (Describe all debts and liabilities, including all notes payable, mortgages, loans, etc.)
III. Annual Income (including salary, bonus, commissions, dividends, etc.) (Attach copy of Federal
Income Tax Return and most recent paycheck stub as proof of income.)
Exhibit A Page 2 of 1
EXHIBIT B
FINANCIAL STATEMENT DISCLOSURE OF HUSBAND
I. Assets (Describe all assets considered separate property of Husband, including approximate
value):
a. Real Estate (description to include address and enough information to clearly identify and value)
b. Bank Accounts and Cash (including life insurance cash value, and the numbers, names and banks of
all financial, checking and savings accounts)
c. Trusts (full name and any identifying number, description of assets and approximate value)
d. Vehicles (including year, make and model)
e. Other (including securities, stocks, bonds, pension/retirement plans or accounts, etc.)
Exhibit B Page 1 of 1
II. Liabilities or Debts (Describe all debts and liabilities, including notes payable, mortgages, loans, etc.)
III. Annual Income (including salary, bonus, commissions, dividends, etc.) (Attach copy of Federal
Income Tax Return and most recent paycheck stub as proof of income.)
Exhibit B Page 2 of 1
