Prenuptial and Marital Settlement Agreements
There are three types of agreements related to the marital relationship: prenuptial agreements, marital agreements and marital settlement agreements. Complying with specific regulations when drafting these agreements means everything when it comes to enforceability or obtaining the judges approval.
Prenuptial Agreements
Prenuptial agreement, also referred to as a premarital agreement, is an agreement entered into by two people in contemplation of marriage. It is basically an agreement made by an engaged couple that takes effect after they get married.
Traditional purpose of a prenuptial agreement is to provide an alternative form of the division of property in case of divorce. That means that rather than have the Family Law Code control the division or distribution of assets, the parties decide for themselves how the assets should be distributed if the marriage does not work out.
In order to be valid these agreements have to in writing and signed by both parties. In addition, it is recommended that by both parties be represented by counsel when negotiating and executing the premarital agreement.
California also requires that there be at least seven days between when a party is first presented with an agreement and when the agreement is signed.
What Kind of Issues Can be Covered by a Prenuptial Agreement?
Prenuptial agreements generally can cover a variety of financial issues including but not limited to:
Ownership of specific assets . Parties can specify who will own the home or the vacation property, etc.
. Parties can specify who will own the home or the vacation property, etc. Waiver of community property rights , including business, real estate, and retirement plans.
, including business, real estate, and retirement plans. Liability for loans and the receipt of loan proceeds.
and the receipt of loan proceeds. Waiver of spousal support.
Please note, however, that California has special provisions regarding spousal support in prenuptial agreements.
First, spousal support clauses in the prenuptial agreement will not be enforced unless the person whose receipt of spousal support is limited or waived had independent counsel before entering into the agreement.
Second, provisions regarding spousal support will not be enforced if they are unconscionable at the time of enforcement. This last factor makes it difficult if not impossible to determine in advance whether a spousal support provision will be enforceable when you separate, as your financial circumstances can change at any time.
What Cannot be Included in a Prenuptial Agreement?
Prenuptial agreements cannot regulate issues relating to children, including child custody and child support. Nor is one allowed to contract about religion, personal habits, and obligations during the marriage, such as household chores, frequency of sexual relations, or penalties for adultery.
What Would Make a Prenuptial Agreement Unenforceable?
There may be multiple factors rendering the prenuptial agreement unenforceable. The most common caveats apply here:
Failure by one party to disclose his or her assets or obligations and the absence of a valid waiver.
Failure to have seven days to review the agreement before its execution.
The agreement contains terms that promote divorce.
The execution of the agreement was a result of fraud, duress or undue influence.
Other issues defined by California law.
It is strongly advised to seek legal representation for your prenuptial agreement in California. Without guidance of an experiences prenuptial agreement attorney, there is a good chance that your agreement may be invalidated in court.
Womens Divorce Center attorneys can negotiate and draft prenuptial agreements, and assist in their execution. We also gladly review and advise you on an agreement that you have drafted yourself or one that was drafted by the other sides attorney.
Marital Agreements
Marital agreements are negotiated and signed by a couple after the date of marriage. They usually regulate very similar issues to those covered by prenuptial agreements and are executed with a purpose of changing the spouses marital rights during marriage or in case of divorce.
The biggest difference between prenuptial and marital agreements is that the spouses have fiduciary duty to one another created by marriage. Subsequently, each spouse has the duty of highest good faith and fair dealing with the other spouse, and neither spouse can take unfair advantage of the other. Therefore, when making an agreement during marriage both spouses must provide the other with full disclosure of any and all information pertaining to issues contained in the agreement.
One example of a marital agreement is a transmutation agreement, in which spouses agree to change the character of a property from community to separate or separate to community. For example, if the wife owned a vacation property before marriage, (her separate property) and after the marriage she wants to make the house a community asset, an agreement to make the change from separate to community is called a transmutation agreement.
The law regarding marital agreements is very specific, thus it is important to obtain assistance of an attorney to prevent costly mistakes and possibility of the set aside of the agreement by Court later on.
Marital Settlement Agreements
The third type of marital agreement is a marital settlement agreement, commonly referred to a MSA. This is an agreement entered into during divorce proceedings. As part of the divorce judgment, the marital settlement agreement contains provisions resolving the divorcing couples property issues, parenting schedules, support amounts, and any other topic affecting the couples rights after the marriage.
California has quite cumbersome and specific requirements for marital settlement agreements, and not doing it right could cause a lot of problems down the road or unnecessary delays in your divorce process. Therefore, it is generally best to have a knowledgeable attorney to draft the agreement.
Please contact Womens Divorce Center at (619) 630-4765 or (858) 461-9237 for assistance with prenuptial, marital or marital settlement agreements.’