A Prenuptial agreement, sometimes referred to as a premarital agreement is a contract that is signed prior to a marriage where the couple makes an agreement as to how property and assets will be divided if the marriage should end at some point in the future.

More often than not, when a young couple is getting married, they have little to their name, so a prenuptial agreement is usually not necessary.  However, if one person in the relationship has significant savings and property, then a prenuptial agreement is a good idea.  These agreements are also used often with couples who are getting married or remarried later in life and have already acquired property and assets in their own name.

Pre-Nuptial Agreement Must Be Fair for Both Parties

The Uniform Premarital Agreement Act is a Uniform act that governs prenuptial agreements and was adopted by the State of California in 1986 and was updated in 2002 for California prenuptial agreements.

A Pre-nuptial agreement cannot be unconscionable.  This means that the agreement cannot be completely one sided and unfair to either spouse.

The law is very specific about what may be included in an agreement and what may not be included.  The law also specifies the conditions that must take place in order for a pre-nuptial agreement to be valid.

Each Spouse Should have Individual Representation for Pre-Nuptial Agreements

One of those requirements is that each spouse, except under certain circumstances, was represented by a different, independent attorney.

Some of the items that can be included in a pre-nuptial agreement include:

• Current and future property rights
• Waiving of spousal support or alimony, but this will only be enforced under certain circumstances
• Changes to Community property rules, such as adding certain individually owned properties or agree that property that would have been considered community property remain the property of an individual.
• Waive inheritance rights unless the waiver will negatively impact a minor child
• Agreement to go beyond the mandated level of spousal or child support

Certain items can not be placed in a prenuptial agreement such as:

• Waiving certain government benefit plans
• Agree to anything that is already illegal
• Anything that would negatively impact children including waiving of support or visitation
• Go against anything that is considered to be public policy.
• Details on how to raise children
  
• Provisions meant to penalize a spouse for certain behaviors
• Provisions meant to alter the duties of a spouse in a relationship

What is a Post-nuptial Agreement?

A post-nuptial agreement is basically the same as a prenuptial agreement that is negotiated and signed after the marriage has already taken place.  In California the law gives latitude in changing or clarifying the details of how finances and property are split during a divorce.

A Fiduciary Responsibility

Spouses have a fiduciary responsibility to each other, meaning they must act in a spouse’s best interest.   This makes creating a post-nuptial agreement something that must be handled very carefully.  The spouse that is being disadvantaged by the agreement must be fully aware and competent to understand the agreement they are entering into and voluntarily sign the agreement.
It is important to understand the ramifications of a pre or post-nuptial agreement.  Having proper representation and looking out for your best interests is vital even when beginning a relationship.
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Tracy Duell-Cazes is a Certified Family Law Specialist by the State Bar of California and handles all aspects of Family Law including pre and post-nuptial agreements.  Call Tracy today at 408-267-4848 for a free consultation.  Make sure the agreement you sign is one that you can live with.