Premarital and Postnuptial Agreements

A premarital agreement can be utilized to accomplish any of the following goals:

● To protect assets for the benefit of children from a previous marriage;

● To preserve the separate property character of real estate, investment accounts, and/or businesses that are brought into a marriage;

● To specify how money or property gets divided upon divorce or separation;

● To clarify how the family finances will be managed during the marriage;

● To specify that certain assets acquired during the marriage will be considered separate property rather than community property;

● To define what debts shall remain the individual responsibility of one spouse.

● Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

In addition, a premarital agreement may limit a spouse’s right to future spousal support. However, support limitations and waivers are complex and must be carefully drafted. In fact, any provision in a premarital agreement regarding spousal support is unenforceable if either (a) the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed or (b) the provision regarding spousal support is unconscionable at the time of enforcement.

If you are contemplating a premarital agreement, it is important that you do so well in advance of the intended date of marriage. A premarital agreement that is signed too close to the date of the marriage may be difficult to enforce, and if the agreement is not signed within a certain prescribed time, it will be, by law, ineffective.

For various personal and financial reasons, a married couple may decide to enter into a contract during an intact marriage — a “postnuptial agreement.” For example, one spouse has substantial separate property. However, during the marriage, that spouse decides that some or all of their separate property should be changed to community property. Or, a married couple may agree to change what would otherwise be community property into one spouse’s separate property. Both couples would use a postnuptial agreement to effectuate these outcomes.

The rules regarding these types of agreements are rigid, and a person considering entering into a postnuptial agreement should seek expert advice before entering into one.