Prenuptial and Post-Marital Agreements.
Note: This article is not legal advice and is not intended to apply to your specific situation.
While prenuptial agreements have traditionally not been commonplace (and post-marital agreements are rarer), they can serve important roles in every relationship and are becoming more popular. We get it - there can be some awkwardness in talking about prenuptial or post-marital agreements with your significant other, but the agreements’ usefulness in planning a marriage together cannot be understated. It is important to keep in mind that everyone who is married and lives in California already has a prenuptial agreement – the default California laws. Entering into an agreement only means you do not think the default California laws are a suitable prenuptial agreement for you.
Prenuptial (Pre-marital) Agreements.
A well drafted prenuptial agreement can clearly define and protect the assets that both spouses bring into a marriage, and delineate the characterization of assets that are to be acquired during marriage. That being said, there are also limitations to a prenuptial agreement. California law defines what parties to a prenuptial agreement may contract to, and what they cannot. California Family Code § 1612. Furthermore, there are also many formalities that must be followed for the prenuptial agreement to be enforceable. California Family Code § 1615.
We feel that there are two main types of prenuptial agreements.
❶ The first type is one that does not change California’s default divorce laws. Such a document will not change either spouse’s rights under California law, but will instead define the character of existing assets, liabilities, responsibilities, and obligations of each spouse, and and thus make any potential dispute easier to deal with.
❷ The second type is one that purports to change the default divorce laws of California. Such an agreement alters the default California divorce laws and can be tailored to fit a couples’ expectations. This type of agreement typically takes a longer time to draft, as the agreement will fundamentally change each spouses’ rights under state law.
While rare, post-marital agreements may benefit married couples in certain situations. Such an agreement can codify each spouse’s responsibilities, and define each spouse’s obligations where necessary. For example, relationships where there are children from previous marriages can benefit from such an agreement by providing clear structure to each family member’s responsibilities and obligations. Also, a post-marital agreement can help couples where it is necessary to separate various financial assets for different uses.
Once a couple marries, additional moral and legal obligations arise (such as owing a fiduciary duty to the other spouse) due to the marriage. This makes drafting the post-marital agreement a delicate and deliberate process to ensure that the post-marital agreement is enforceable and that both spouses are not adversely affected emotionally.