Pre-Nup and Post-Nup Marital Agreements
A Pre-nup can be useful, but get your own attorney
If you receive a marital agreement for your signature, it is highly advised that you seek an independent counsel to conduct a review. The preparer of the agreement is not your attorney, and they cannot give you advice as to any rights you may be waived under the agreement.
Further, if only one party was represented by an attorney, the Courts have an additional reason to scrutinize the validity of the document.
California Pre-nuptial Agreements
We are often asked what content can be put in a Pre-Marital Agreement. Truthfully, there are many things. The Family Code governs family law.
According to the Family Code, premarital agreements can contain the following:
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
- The disposition of property upon separation, marital dissolution, death, or the occurrence or non-occurrence of any other event.
- The making of a will, trust, or other arrangements to carry out the provisions of the agreement.
- The ownership rights in and disposition of the death benefit from a life insurance policy.
- The choice of law governing the construction of the agreement.
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
Limitations on child support, child custody, religion, damages for infidelity, among a few other things, are unenforceable and not usually included in a premarital agreement.
Also, the law states that there is a deadline when it comes to entering into a premarital agreement so it is not something you want to complete at the last minute. There is a seven (7) calendar day rule. You want to ask an attorney about this.
If you find you are within that 7-day window and it is too late for a premarital agreement, you may also consider a postnuptial agreement, or “post-nup”. This is an agreement that takes place after the marriage has already occurred. The reasons for obtaining one would be the same as those mentioned for a premarital agreement. The thing to consider with a post-nup is that the act of marriage gives rise to strict legal fiduciary obligations between the couple and are very closely scrutinized and often challenged. It is highly important that an attorney draft this document or any premarital agreement.
California Post-nuptial Agreements
It is a common misconception that in California, a prenuptial (prenup) agreement is the same as a postnuptial agreement but they are not. In California, there is a presumption that a prenuptial agreement is valid. The converse is true with a postnuptial agreement (postnup). There is a presumption that postnups are invalid.
A postnuptial agreement is drafted after a couple is already married. Postnups are drafted for a variety of reasons, even when the marriage is doing just fine. A postnuptial agreement can be used to truly define assets like each spouse’s respective separate property, financial responsibilities, or rights to the family business. Sometimes a postnup is drafted because the couple simply did not have enough time before they got married. (See discussion of premarital agreements, or “prenups”.)
What are the requirements for a postnuptial agreement?
To establish the validity of a postnuptial agreement, the agreement must:
- Be in writing
- It must be signed and notarized by both spouses
- Be voluntary. The agreement may not force the other spouse to sign the agreement.
- Be equitable. If a postnup is too “one-sided” it can be deemed invalid due to its unconscionability.
- Contain full disclosure. This can be a tedious and cumbersome process, especially when a couple is already married.
Why might you need a postnuptial agreement?
A California postnuptial agreement can outline a variety of things:
- Spousal Support Terms
- Respective interest in the family residence
- How property is to be characterized
- Responsibility for debts, liabilities, and loans.
- Insurance beneficiaries
- Family Pets
- Division of property upon death
What about spousal support?
California courts are very cautious to validate postnuptial agreements which waive or limit post-divorce spousal support. A postnuptial agreement which attempts to contract in or out of child support is not enforceable.
Pre-nup and Post-nup Resources
Cohabitants Beware
Regardless of whether they have a romantic or sexual relationship, is cohabitators beware. Before you hand your apartment keys over to your friend or lover, it is good practice to make sure you understand what you could be facing down the road. We suggest you consult with an attorney if any of these situations apply to you and a significant other.
“We Want Prenup, Yeah! It’s Something That You *May* Need to Have”
Prenuptial agreements require more reasoned negotiations than you think.
How to Protect Separate Property in the Event of a Divorce
The best way to avoid any confusion regarding separate property is to be aware of the conditions surrounding the separate property and to act prior to a potential divorce.
Deciding if a Pre-Marital Agreement is Right for You and Your Partner
Getting married and planning for your future with your life partner is an exciting and...
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