Postnuptial agreements were rarely requested at James A. Hennenhoefer's Vista-based family law firm in the early 1990s. But these days, the partner and president of the American Academy of Matrimonial Lawyers says, "We get probably one a month"-five or six times the rate before In re Marriage of Pendleton v. Fireman (24 Cal. 4th 39) established the enforceability of spousal-support waivers in 2000.
Like Hennenhoefer, family law attorneys up and down the state say postnuptial agreements are on the rise. Unlike prenuptial agreements, postnups can transmute community property. They can also rectify a flawed prenuptial agreement, or plan for the effects of an increase in income, an inheritance, or a business investment that involves just one spouse.
In part, the rise is due to a growing awareness of the potential legal torments in dissolving a marriage. "I attribute it just to talk and general publicity on how bad it is to get a divorce," says R. Bruce Laing, a family law sole practitioner in Larkspur.
In this age of dual power careers, postnuptials can also let one spouse bet the farm-or at least his or her part of it-on an enterprise while the other one sleeps peacefully at night. And business partners are seeking postnups, hoping to protect their interests from a partner's spouse. At companies where executives are also owners, they may even become a common requirement for employment.
Still, because California recognizes spouses' basic fiduciary duty with respect to community property, some courts remain suspicious of postnup agreements. Judges have been known to throw out those they find tainted by undue influence (such as when a spouse withholds intimacy until a postnup is signed). And creditors can always go after the family residence, regardless of whom a postnup specifies as the owner.
Ultimately, such snags may further increase interest in marital mediation as a way to avoid an adversarial divorce. "An expression I've heard from other attorneys is 'When you have a postnup that has one big winner, really what you have are two big losers,' " says Los Angeles sole practitioner Jeffery Jacobson. "That's where we start with collaborative law."