Prenuptial and Post-nuptial Agreements

In these modern times, prenuptial contracts are often utilized by "ordinary people" to protect their right to determine what happens to their ordinary amounts of wealth. While couples enter into marriage with the goal of living a long and happy life together, circumstances –and people-change. Love and commitment does come and go far more frequently than would be anticipated. Premarital agreements can minimize surprise, suffering and financial loss. Prenuptial agreements should be created and read by experienced California family lawyers.

T he Uniform Premarital Agreement Act (UPAA) is the state law governing California prenups since 1986. It requires that written prenuptial agreements are signed by both parties; the agreement automatically goes into effect when the marriage takes place. An 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 court order.

Principles of general contract law also apply to prenuptial agreements. Agreements require valid consent, meaning that a person must have the mental ability to consent, and that consent cannot be the result of fraud, inappropriate influence, or mistake.

Spouses commonly wish to address custody and child support issues in their prenuptial agreements. California law prohibits this.

Without a Prenuptial Agreement, Marital Property is Community Property

A post-marital agreement, also known as a post-nuptial agreement, is a document that the already-married spouses agree to in order to predetermine property allocation and spousal support if the marriage ends in a divorce. 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 problems, and represent attempts to settle those problems before a divorce becomes inevitable.

They may 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.

Post-marital agreements are similar to premarital agreements except that the agreement is entered into after the parties are already married.

Why Might a Couple Want a Post-Marital Agreement?

There are endless reasons why spouses might enter into a post-marital agreement:

  • The status of the relationship may have changed
  • One of the parties may be ill or terminally ill
  • Family matters may have changed for one or both spouses
  • Job status and income may have changed
  • The spouses may be planning a dissolution of marriage
  • Sound financial planning

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