CALIFORNIA PRE-MARITAL AGREEMENT AND POST-MARITAL AGREEMENT ATTORNEY
If you're trying to decide whether or not to make a prenuptial agreement (also called a premarital agreement or just a "prenup"), you'll need to understand what this type of contract can -- and can't -- do for you.
What You Can Do With a Prenup?
A prenup may help if you have one or more of the following goals:
Keep finances separate. California has laws designating certain kinds of assets accumulated during marriage as community property, even if these assets are held in the name of just one spouse. If a couple divorces, or when one spouse dies, the marital or community property will be divided between them, either by agreement or by a court. If you want to avoid having some or all of your individual accumulations during marriage divided up by a court, you can do so with a premarital agreement.
Protect each other from debts. Some of us bring debts, as well as assets, to a marriage. If there is not a prenup, creditors can sometimes turn to marital or community property to satisfy the debts of just one spouse. But if you want to make sure that saying "I do" does not mean saying "I owe," you can use a prenup to limit your liability for each other's debts.
Provide for children from prior marriages. A prenup is helpful (perhaps essential) if either of you has children from another relationship and you want to make sure that your children inherit their share of your property. In a prenup, one or both spouses can give up the right to claim a share of the other's property at death, perhaps in exchange for an agreed upon amount of property.
Keep property in the family. If your property includes something you want to keep in your birth family, whether it be an heirloom or a share in a family business, you and your spouse can agree that it will remain in your family, and you can specify that item in your prenup. This can even include property that you expect to receive in a future inheritance.
Define who gets what if you divorce. Without a prenup, state law will specify how your property will be divided if you ever divorce. These laws may dictate a result that neither of you wants. You can use a prenup to establish your own rules for property division and avoid potential disagreements in the event of a divorce. In most states, you can also make agreements about whether or not one or both of you will be entitled to alimony.
What You Can't Do With a Prenup?
Restrict child support, custody, or visitation rights. No state will honor agreements limiting or giving up future child support. The same holds true of agreements limiting future custody and visitation rights. This is because state lawmakers consider the welfare of children to be a matter of public policy and do not enforce any private agreements that would impair a child's right to be supported or to have a relationship with a parent in the future.
"Encourage" divorce. At one time, many courts viewed any prenup specifying how things would be divided up in case the couple splits as void and unenforceable because it promoted divorce. The modern approach allows such agreements, but judges in some states still take a hard look at them. If the agreement appears to offer a financial incentive for divorce to one party, it may be set aside.
Postnuptial Agreement
A Postnuptial Agreement is an agreement between two persons who are married to each other about how they will hold title to property in the future, and how they will hold the property they presently own. It also sets out how their property will be divided in the event the marriage ends. It can also address for how spousal support, if any, will be decided in the event the marriage ends in divorce.
This type of provision is new to California and the limits are still being defined by the courts. Until recently it was not possible to contractually agree on spousal support obligations or waive them under California law. It is still not possible to decide issues relating to custody of children or the support of children in an agreement that are not subject to court approval. A Postnuptial Agreement is similar to a Premarital Agreement, but is entered into after marriage rather than before marriage. Because of the duties the law requires of married persons towards each other is different than the duties unmarried parties have towards each other, how the agreement is interpreted and enforced may be different. It is much preferable to enter into an agreement prior to marriage, but an agreement after marriage is better than no agreement at all. Because of the complexity of California law dealing with how property is divided after a divorce, if one of the parties to a marriage has a pre marital business, or any significant assets, or substantial income, it is imperative that a premarital or postnuptial agreement be negotiated and signed.
By doing so, it will not only allow the parties to become informed about how marriage can affect their estates, but can save a small fortune in legal fees in the event of a divorce. Because each person's situation is unique, and the law complex and difficult, a premarital or postnuptial agreement should be tailored to each parties particular circumstances and prepared by a qualified attorney.
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