Pre and Post-Nuptial Agreements

If you are planning to get married, you may want to consider a Premarital Agreement, often called a “prenuptial” or a “prenup”.  This agreement will outline each prospective spouse’s separate property owned before marriage, and the property rights available for each during marriage and in the unfortunate event of a separation.  Making decisions about each of your property rights ahead of time allows you to avoid uncertainties.  Many couples appreciate the financial clarity that this agreement can provide.

Prenups should be negotiated, drafted, reviewed and signed well in advance of any planned wedding dates, and especially before invitations are sent.  This ensures that both parties signed the prenup voluntarily and without the duress of an approaching wedding reception.

If you did not have time for a prenup before the wedding, but would still like to define your financial relationship after the wedding, then consider entering into a Post-Marital or Postnuptial Agreement.  Think twice before drafting or agreeing to a prenup or postnup on your own.  Such an agreement might not hold up in court if each spouse was not represented by a separate attorney.

A Premarital Agreement is a written agreement between prospective spouses made in contemplation of marriage and to be effective upon the parties getting married.  Under Fam C 1612(a), “Parties to a premarital agreement may contract with respect to all of the following:

(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.

(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.

(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or non-occurrence of any other event.

(4) The making of a will, trust, or other arrangement to carry out the provisions of the

agreement.

(5) The ownership rights in and disposition of the death benefit from a life insurance policy.

(6) The choice of law governing the construction of the agreement.

(7) Any other matter, including their personal rights and obligations, not in violation of public

policy or a statute imposing a criminal penalty.

(b) The right of a child to support may not be adversely affected by a premarital agreements

Most couples have heard about prenups, but many are familiar with Post-Marital Agreements.