Prenups, Postnups, and the Claremont Family Home

Some couples arrive at a divorce with a document already in hand. A prenuptial agreement signed before the wedding, or a postnuptial agreement signed afterwards, saying something about the house.

The reasonable expectation is that this makes everything simpler. Sometimes it does. Sometimes the agreement answers less than people remember, or answers a question the marriage has since outgrown.

What a marital agreement means, whether it is enforceable, and how it applies to a particular property are legal questions of real difficulty. They belong to a family law attorney, and nothing in this article is legal advice or an opinion about any agreement's effect. I take no position on which spouse an agreement should benefit, I do not read them for meaning, and both parties get the same information from me at the same moment.

What these documents generally try to do

In broad terms, California law permits spouses to make agreements about property, subject to statutory requirements and to judicial review. Prenuptial agreements are made before marriage; postnuptial agreements are made during it. Both are subject to rules about how they are entered into and what they may cover.

That is as specific as I am willing to be, and the reticence is the point. Enforceability turns on the circumstances of signing, the disclosures made, the presence of counsel, timing, and the substance of the terms. It is one of the most litigated corners of family law, and a confident summary in a real estate article would be worse than useless.

Where agreements meet a house, and where they stop

Even a clear agreement often addresses less of a property picture than people assume, because a house accumulates history the document did not anticipate.

An agreement written before a purchase may say nothing specific about a property bought years later. One that names a home may not address what happened when it was refinanced, or when a substantial remodel was funded from somewhere unexpected, or when the parties took title in a form inconsistent with the agreement. The interaction between an agreement and how title was actually taken is a recurring question, and it connects directly to the issues in One Name on Title, Two in the Marriage: Claremont Pitfalls.

Contribution and reimbursement questions can also survive alongside an agreement, depending entirely on what it says. Those are described generally in Separate-Property Contributions to a Community Claremont Home.

None of that means an agreement is worthless. It means the document is a starting point that counsel reads against the actual history of the property, rather than a switch that settles everything.

The lender still does not care

A point that surprises people every time. A marital agreement, like a divorce judgment, binds the spouses. It does not bind a mortgage lender.

If both spouses signed the note, both remain liable regardless of what an agreement says about ownership. Removal from a loan happens by payoff, refinance, or an assumption and release where the loan permits one. The distinction is set out in Divorce and the Mortgage: Who Owes What on a Claremont Home, and it applies here without modification.

Anyone relying on an agreement to protect them from a mortgage obligation should confirm that assumption with their attorney before relying on it further.

What the sale looks like

Assuming a sale happens, the transaction is ordinary. Both parties whose signatures are needed sign, escrow follows written instructions, and proceeds are disbursed as the parties instruct or as a court orders.

An agreement may inform what those instructions say. It does not replace them. Escrow does not read agreements and decide; it acts on signed instructions, as described in Two Signers, One Deal: Escrow in a Claremont Divorce Sale.

So the practical requirement is unchanged. Whatever the agreement provides, someone has to translate it into a clear, signed instruction before closing. Doing that early avoids a closing that stalls on a document nobody drafted.

The documents to gather

The agreement itself, with any amendments. Evidence of what was disclosed and when, if that exists. Every deed and recorded document for the property. Purchase and refinance closing statements. Records of contributions and improvements with their funding sources.

Give the whole set to counsel without editing it. An agreement read in isolation from the property's history is being read without half the relevant facts.

If you are reading this before anything has happened

A postnuptial agreement is available to married couples, and a marital agreement of either kind is drafted by attorneys, one for each party. That is not a formality; independent representation is part of what these documents are assessed against.

I mention it because the alternative many couples choose is a vague understanding they both believe is shared. Those tend not to survive contact with a divorce, and a house is usually the largest thing they fail to cover.

Whatever your position, take the document and the property records to a family law attorney, and the tax questions to a CPA. For the surrounding process, see the Claremont divorce sales hub and Selling a House During Divorce in Claremont: The Basics. Anthony Grynchal has been licensed in California since November 2009.