The last thing most couples want to think about when they are about to marry is a prenuptial agreement (also known as a “premarital agreement”). It isn’t exactly romantic to discuss how to protect your finances if you split up when you are on the verge of pledging your undying love in a wedding ceremony. But we live in the real world, and should your marriage end, you want to be in a good position to go on with your life without undue stress, anxiety, and expense.
It is only prudent, therefore, to sign a prenuptial agreement before walking down the aisle. Though premarital agreements are certainly a must for the very wealthy, it is wise for everyone to have one. When a couple agrees to division or property and spousal support issues before they even marry, it is much more likely they can end their marriage amicably and avoid hostile litigation.
But what if you are already married and neglected to sign a prenuptial agreement? All is not lost. You and your spouse can still sign a postnuptial agreement, though the standards are stricter.
Basic Requirements of a Prenuptial Agreement
For a prenuptial agreement to be enforceable under California law, it must meet certain basic requirements. Here are some of them:
- It must be in writing and signed by both parties.
- It must be entered into voluntarily by both parties.
- Both parties must receive full disclosure of the property or financial obligations of the other party.
- The party against whom enforcement is sought must be given at least seven days for them and their attorney to review the agreement.
- The party against whom enforcement is sought must have been represented by an attorney before signing the agreement for it to be enforceable unless they
- specifically waived that right in writing or
- were fully informed of the terms and basic effect of the agreement as well as the rights and obligations they were giving up by signing
- Any other factors the court deems relevant
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What a Premarital Agreement Can Cover
Prenuptial and postnuptial agreements are vehicles for a couple to list every structural detail of their marriage such as who will do the housework or whether a spouse may attend weekly poker games. Their primary purpose is for the couple to agree to issues related to spousal support and property.
- Spousal support: A couple can modify the California statutory terms of spousal support or give up spousal support all together.
- For example, the agreement might stipulate the amount of spousal support that a spouse pays over years or a lump sum payment one spouse pays to the other at the time of the divorce.
- Spousal support terms may not be "unconscionable". In other words, as an extreme example, a court is not going to uphold a prenuptial agreement barring spousal support if one of the spouses would be left destitute. For spousal support terms to be enforced, the couple should be self-sufficient regarding both earning ability and property at the time they sign the prenuptial agreement, and they should have approximately the same level of education.
- Property: California is a community property state, but a couple may change how property is divided with a prenuptial agreement. Many people also use prenuptial agreements to clarify exactly what property each spouse brought into the marriage.
- Usually earnings made during the marriage are community property that can be divided equally. However, a couple can alter that with a prenuptial agreement.
- A couple can designate which specific property goes to which spouse in case of divorce.
- A couple can override inheritance provisions of California divorce law. Say, for example, that one spouse has a valuable antique collection before the marriage. Normally, that would remain with the spouse who owned the antiques before the marriage, but a couple could opt to treat the antiques as community property through a prenuptial agreement.
· Clarification of debt: A couple may want to clarify what debt each spouse brought into the marriage and who is responsible for that debt.
- Support for children of a previous marriage: If one of the parties has a child from a previous union, and their spouse has not adopted the child, the couple can still agree to terms of support for the child in a prenuptial agreement. Also, one reason many people want a spouse to waive inheritance rights is so assets may be passed on to children the other spouse had with a different partner before the marriage.
- Child visitation, support and custody: You may include child visitation, support and custody in a prenuptial agreement to show a court your intentions, but a court is not bound by them. A California family court will always decide in the best interests of the child.
What Cannot Be Covered
As already mentioned, not everything may be included in a valid prenuptial agreement. These include:
- Any rights that a prospective spouse (as opposed to a spouse) does not have the power to waive. For example, only a spouse may waive the right to share in an ERISA employee benefit plan.
- Anything illegal or against public policy. As a matter of public policy, you cannot for example, waive your children’s right to support, because courts will always rule in the best interests of the child.
- Terms that indicate how children are to be raised such as attending specific schools or practicing a specific religion.
- Personal lifestyle choices such as insisting that a spouse must maintain a certain exercise or beauty regimen or detailing who does the dishes.
All well and good, but what happens if you did not sign a prenuptial agreement and you now regret it? Or perhaps circumstances have changed that make a marital agreement prudent. Well, it’s not too late. You can have your attorney draft a postnuptial agreement, also referred to a postmarital agreement. The other spouse should have their own California attorney review the agreement.
Here are a few examples of why a couple might decide to hire attorneys to formulate a postmarital agreement. This is far from a complete list:
- After they are married, a couple may start a business together, and they want to agree to how that business will be handled in case of divorce.
- A spouse unexpectedly receives a large inheritance, and the couple wants to divide it differently than California law provides in case of divorce.
- A couple is not getting along, and it seems prudent to negotiate and sign a postmarital agreement before conflicts escalate.
A California postnuptial agreement may cover the same issues as a prenuptial agreement, but a court will look at it more closely.
Postnuptial Agreements Are Held to a Higher Standard
California holds spouses to a higher standard than those intending to marry, making postnuptial agreements harder to enforce than prenuptial agreements. Spouses have a fiduciary, confidential relationship with one another. That means that each spouse has a duty of the highest good faith and fair dealing toward the other.
Since each spouse becomes a fiduciary to the other upon marriage, a California family court will scrutinize a postnuptial agreement much more closely than a prenuptial agreement to be sure that fiduciary standard is upheld. Each spouse must make full disclosure of all financial information concerning the issues addressed in the postnuptial agreement. Since there is no fiduciary relationship between prospective spouses, if one of them later challenges a prenuptial agreement, there is no presumption of undue influence as there is for a postnuptial agreement.
An Experienced California Lawyer Can Be the Difference in Enforcing Marital Agreements
Both parties should have separate experienced California family lawyers represent them for creation and review of any marital agreement. It is not enough for only one party to have a lawyer draw up the agreement. The other party should also have a lawyer review it. This is particularly true of postnuptial agreements since the courts examine them so closely. And keep in mind that once you sign a prenuptial or postnuptial agreement, you may not be able to change the terms without the agreement of your partner.
If you are in Sherman Oaks, Encino, Woodland Hills, Studio City or any other area of Los Angeles County, call us at Ghazi Law Group for a free consultation at (818) 839-6644 or email us at firstname.lastname@example.org.
We will protect your rights and steer you away from potential hazards.