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Premarital agreements, commonly called prenuptial agreements, are now viewed as promoting marriage, since many spouses decide not to get married without one! Many marry later in life, having had children and accumulated real estate and other assets. Others do not want to assume responsibility of their new spouse’s debt. Also, there are those who want a less expensive road-map for resolving differences if a relationship fails, rather than face expensive litigation costs.
Most people have no idea how decisions made during marriage can affect them legally in the event of a divorce. While no one marries with the intent to divorce, planning for the future can have a number of important benefits. For these reasons, it is beneficial to predetermine certain rights and responsibilities prior to marriage or becoming domestic partners. Having a solid legal description of what will happen in the event of divorce or the loss of a spouse can serve to protect the future of you and your children. In 1985, California adopted the Uniform Premarital Agreement Act (UPAA), and further amendments were made effective in 1994. Major amendments were last added in 2001 and their effect and interpretation are still winding their way through the appellate courts.
Today it is lawful to create binding premarital agreements which are enforceable by California Family Courts and cover almost every topic other than child support or child custody. The state has an interest in protecting children so parents cannot contract away the court’s jurisdiction over issues where the parties disagree such as child support, child custody, or other disputes where the state has a reimbursement interest. Parents can express their non-binding wishes in an agreement and courts will look to the parties’ intent if any conflict arises. This is particularly important for couples where only one of the parties is a legal parent.
Premarital agreements can effectively waive or limit spousal support. Family Code section 1612, expressly permits such waivers. Convoluted support waivers may not be enforceable if the statutory conditions set forth in Family Code section 1615 are not fully met.
Parties can also:
- Agree to change or protect the character of property already owned by them, or acquired during marriage in either person’s name including all obligations relating thereto.
- Predetermine how property will be disposed of upon separation, dissolution, death, or “the occurrence or nonoccurrence of any other event.”
- Reach agreements about wills or trusts or other arrangements to carry out their agreement.
- Limit or expand ownership rights in death benefits contained in life insurance policies.
- Decide which State’s laws will govern construction of agreement terms.
- Determine any other matter in advance so long as their wishes do not violate a civil or criminal statute or penalty.
Importantly, for a premarital agreement to be enforceable a number of formalities and conditions must be met. This is true whether or not the parties intend to waive or limit spousal support or merely to deal with potential property issues. For example, if the person against whom enforcement is later sought had less than seven days between being presented with the agreement (and being advised to seek independent legal advice) and the signing of the agreement, then the agreement may be unenforceable against that party. The adversely affected party must have been advised by independent counsel who, typically signs the agreement OR they must sign an independent writing that states they were fully informed of the terms and basic effect of the agreement as well as the rights they were giving up before signing the prenuptial. It is almost certain that a premarital agreement prepared without each party represented by an attorney will not be effective even to protect property. It is also guaranteed that a waiver of spousal support will not be enforceable, unless the party who later seeks support, was actually represented at the time the agreement was signed by the party and their attorney. Even the waiver will not be enforced if the waiver is deemed “unconscionable” at the time it is asserted.
If you are contemplating marriage or domestic partnership, The Mediation Law Offices of Chandra Nelson-Robak can help you mediate the terms of your agreement so that you can plan appropriately for your future.