Frequently Asked Questions On Premarital Agreements
Below is a compilation of the most frequently asked questions we have received from our clients and prospective clients in our years of experience preparing premarital agreements. These questions and answers are not intended to be legal advice to any person. This information is general in nature and an answer given may or may not be applicable to a particular situation. Family law issues are extremely complex and competent legal advice should be sought from a licensed attorney. Please reach out to us either by calling 925-317-1028 or emailing us to discuss questions relevant to your particular case.
What Is A Premarital Agreement?
A premarital agreement is a contract entered into by two people in anticipation of marriage which specifies how property, debts and other issues will be dealt with in the event of a divorce and how property is managed during marriage.
Why Do I Need A Premarital Agreement?
There are any number of reasons why you might need a premarital agreement. Often when one thinks of premarital agreements the scenario that comes to mind is where one party is wealthy and the other is not wealthy. In cases such as this, a premarital agreement is meant to both protect the wealthy spouse’s property and ensure a fair result for the other less financially able party. However, a premarital agreement is just as important whereby one party has substantial premarital debt, interests in partnerships or other business practices or when one party has wealthy family members and they expect to inherit a substantial estate. Premarital agreements are also prudent for blended families formed during subsequent marriages to allow each spouse to appropriately provide for children of prior marriages.
Does Everyone Getting Married Need A Premarital Agreement?
No, not everyone needs a premarital agreement. However, a little planning can go a long way in any marriage. Negotiating a premarital agreement forces a couple to look at their current financial circumstances and evaluate the “what ifs” that might arise in a marriage and can be particularly useful in defining how assets will be managed during the marriage.
Are There Specific Requirements To Make A Premarital Agreement Valid?
Yes, and missing any one of the requirements can completely invalidate the entire agreement. If you intend to enter into a premarital agreement, it is imperative to discuss the agreement in detail with an attorney familiar with all of the requirements and have that attorney draft the agreement or review it for all of the requirements before signing it.
Are Premarital Agreements Expensive?
Not typically. While there are some circumstances that require complex attorney time, experienced premarital agreements attorneys can handle premarital agreements rather routinely and inexpensively.
What Is The Difference Between “Post Marital” And “Premarital” Agreements?
Aside from the difference in timing of these two agreements, the primary difference is the requirements of making these agreements enforceable. Both have specific items which must be included and completed to make them valid. You must consult with an attorney if you intend to enter into an agreement with your spouse. If any requirements are not met or included, the entire agreement can be rendered unenforceable and you will not be provided any of the protections you thought you acquired.
Does A Premarital Agreement Cover Alimony?
Yes. One of the items that can be included is the type of support that will be paid if the marriage ends and how much will be paid. It can even include a complete waiver of spousal support. However, this particular issue can still be unenforceable if it is considered unconscionable by the court at the time of enforcement.
Does A Premarital Agreement Affect Child Custody Or Child Support?
No. A premarital agreement affecting child custody or child support is unenforceable as it is against the public policy of the state. The courts will always have the right to determine the best interests of the child in ordering custody and support.
How Do I Keep My Separate Property Safe?
You can keep your separate property safe by taking precautions early. First, put a prenuptial agreement in place. During marriage, avoid co-mingling your separate property with community property by keeping separate accounts and not paying down encumbrances on separate property with community property funds. In California, it is somewhat difficult to change the character of a separate property asset into community property. The law allows for tracing and reimbursement, but you should be fully informed of the types of actions that can alter the character of property.
Do I Need My Own Attorney If My Fiancé’s Lawyer Prepared A Premarital Agreement?
You should always have your own attorney review any premarital agreement to ensure enforceability and that your rights are being protected. In any case involving a waiver of spousal support, it is required that both parties be represented by their own attorney. In response to a ruling in the Barry Bonds divorce case, the California legislature changed the law to require that parties waiving or limiting spousal support have legal representation when executing the agreement.
If My Spouse And I Have A Premarital Agreement, Can We Change The Terms Later?
Yes, provided that both parties agree to change the terms. You can always modify, terminate, or renegotiate an agreement between two parties. However, this is not the case if only one of the parties wishes to make changes.
Can A Premarital Agreement Ever Be Invalid?
Yes. A premarital agreement can be invalid, or portions of it can be unenforceable if any of the requirements for making the agreement are not met. Premarital agreements can also be unenforceable or invalid where it can be shown that the agreement was entered into by a party under duress or coercion, or where it is shown that the terms of the agreement are unconscionable.
Can I Have My Spouse Agree That They Will Not Be Entitled To Spousal Support If We Divorce?
Yes. Unlike child support, a waiver of spousal support is generally enforceable in California. However, this particular issue is very complex and requires the advice of counsel.
Can A Premarital Agreement Determine How My Spouse’s Property Is Distributed After His Or Her Death?
Yes. A premarital agreement can provide for waivers of, or rights in, each of the spouse’s separate property interests, specific gifts upon death of spouse either to the other spouse, children, children of a previous marriage, or any other third party. In addition, premarital agreements can include provisions for life insurance for either or both of the parties upon the death of the other.