Prenuptial and Postnuptial Agreements
Roughly half of today’s marriages end in divorce. That is simply just the reality of our society and it’s hard to say that marriage is forever. Since there is a real probability an enivitable divorce, should the people start their marriage by writing specific plans for its demise—even before they tie the knot? An increasing number of couples believe that a prenuptial agreement is a prudent decision, and sign a formal prenuptial contract governing property and other rights before they exchange their vows.
Formal agreements signed after the marriage are also becoming more common. These contracts are called postnuptial agreements and they concern some of the same issues as prenuptial contracts, but tend to go further, often specifying specific details of how the spouses will treat each other and share the marital burdens.
PRENUPTIAL AGREEMENTS
These days, prenuptial contracts are no longer reserved for celebrities and the top 1%. Prenuptial agreements are now designed for the working class and ordinary individuals to protect their right to determine what happens to their property and income in the event of a divorce.
The Uniform Premarital Agreement Act (UPAA) is the state law governing California prenuptial agreements since 1986. It requires that both parties sign the written prenuptial agreement; the agreement automatically goes into effect when the marriage takes place. The agreement can cover a couple’s present and future property rights, as well as other matters, but it cannot include any agreement that might negatively affect matters of child support, child custody, and visitation, which remain subject to the family court.
Principles of general contract law also apply to prenuptial agreements. Agreements require valid consent, meaning that a person must have the mental capacity to consent, and that consent cannot be the result of fraud, undue influence, or mistake.
Prenuptial agreements can vary considerably in their details, and may extend to completely non-financial issues. A typical “prenup” inventories the assets, asset protection, and liabilities of both prospective spouses, and expressly declares what each spouse’s rights will be to the inventoried items in the case of death or divorce. If executed properly, the terms of the agreement override the default laws that would ordinarily apply to determine property division.
One of the most common uses of a prenuptial agreement is to deviate from the default law regarding spousal support or alimony. In California, spouses generally have a duty to support each other and this duty can extend beyond the marriage in the form of spousal support. Accordingly, couples may want to contract to waive spousal support so that in the event of a failed marriage neither spouse will be on the hook to support the other spouse for years and years. Prenuptial contracts may also be used to protect the spouses from each other’s debts that exist prior to the date of marriage.
As with any document that has a property inventory as its core, you need to review the agreement from time to time to determine to ensure the agreement is accurate as time passes. As new property is acquired and old property transferred, the agreement should be updated.
ENFORCING A PRENUPTIAL AGREEMENT IN CALIFORNIA
A properly executed prenuptial agreement is a valid and binding contract. The problem is that many people, whether through negligence or methodical attempt to take advantage, do not follow the rules in drafting an executing a prenuptial agreement. To ensure that a court will uphold the terms of the prenuptial agreement, these conditions must be followed when drafting the agreement:
- The spouse must have been provided with complete information about the other spouse’s property and finances prior to signing it
- A minimum period of 7 days must have passed between receipt of the agreement and signing it
- The spouse must have been represented by his or her own attorney when signing the agreement, unless the spouse received full information in writing describing the terms and basic effect of the agreement, including an explanation of any rights and obligations the agreement would nullify, and signed an acknowledgement of receiving the document, and waiving the right to an attorney. This is never recommended.
CONSIDERING A POSTNUPTIAL AGREEMENT?
Postnuptial agreements are a lot like prenuptial agreements, except they are signed after the marriage has taken place. In many instances, they are prompted by actual marital discord, and represent attempts to settle those problems before a divorce becomes unavoidable.
Postnuptial agreements may be used to address financial matters of all kinds, especially if one spouse has had a major change in finances since the wedding took place. They are also more likely than prenuptial contracts to impose terms governing the specific behavior of one or both spouses. Infidelity is one common subject as well as wasting the family’s money on questionable items such as shopping, gambling, and drugs.
CONTESTING A POSTNUPTIAL AGREEMENT
Postnuptial agreements may be challenged on the same bases as prenuptial contracts: sufficient time to evaluate the agreement, full disclosure of pertinent information, and independent legal advice.
SAN DIEGO ATTORNEY FOR DRAFTING OR ENFORCING A PRENUPTIAL OR POSTNUPTIAL AGREEMENT
Prenuptial and postnuptial contracts both require legal examination to be enforceable. The consequences of signing are momentous and everlasting—remember, you are agreeing to give up protections set forth in the California Family Code and living by the terms of the contract. Before you sign, consult with a lawyer who deals regularly with these agreements. For example, you may want your attorney to draft a termination clause to terminate the agreement after a set number of years or to adjust the property as the marriage endures longer.
Protect your rights by getting an professional legal opinion before you sign by calling the San Diego Family Lawyers at Mellman & Mellman. We will protect your rights and help obtain the best possible outcome.