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Frequently Asked Questions About Premarital Agreements

What is a Premarital Agreement?

A premarital agreement, also referred to as a prenuptial or antenuptial agreement, is a written contract or agreement before marriage as to what the property rights will be during the marriage, and how those rights will be treated when the marriage ends in divorce, annulment, or death.

Are Premarital Agreements Important, and Are They Binding?

A properly drafted and signed premarital agreement is binding on both parties and will determine how assets and debts are treated when the marriage ends. That doesn't mean that an agreement cannot be set aside, or invalidated, but most states will enforce an agreement unless some sort of fraud or duress is proved. Since all marriages end, and some marriages may last a long time before ending, a premarital agreement is a very important document indeed.

Do I Need a Premarital Agreement?

"That depends." Sorry for this typical lawyer-like answer, but this is serious business, and few people other than qualified lawyers can help you find an answer to this question. The answer is found after asking what a person wants the agreement to accomplish upon the ending of the marriage, as opposed to what would happen if there was no agreement. Only a qualified lawyer can help with this answer. If a person has no substantial assets or income, it is unlikely a premarital agreement is needed, but if there is substantial assets or income, or this is a second marriage, it may be wise to get legal advice and consider a premarital agreement.

How Soon Should the Agreement be Signed?

Many agreements are attacked later if a spouse had the agreement thrust at him/her at the last minute, without time to seek separate legal advice or to consider the terms of the agreement. The more time that elapses between the signing of the agreement and the wedding, the more likely the argument that a party was "rushed" will fail.

Should Each Party Have His/Her Own Lawyer?

An agreement is much more likely to be enforced if each party had an independent lawyer review the agreement and advise the party about it. But more importantly, each party deserves to have good legal advice before signing such an agreement. Giving up important rights may seem minor when first thinking about marriage, but the longer a marriage lasts the more giving up those rights may seem a mistake. Each party should give careful consideration to the advantages or disadvantages created by the agreement, and whether over the long term this is something the party wants to do. And unless a party receives independent legal advice, it may be difficult to know just what rights are being given up, and what that means over a long period of time.

Isn't it Difficult to Mix Business With Love?

Premarital agreements and romance don't mix well, it is true, however many people have been married before and have lost significant assets and income upon divorce. Protecting one's self from a second or even third economic loss is only natural. Now, how does one go about negotiating about money with someone who is an intended marriage partner? Telling the truth to the other person is a start. Sharing fears about losing assets or income again, or protecting children of a prior relationship are understandable reasons for wanting the protection of a premarital agreement. But keep in mind that starting discussions about a premarital agreement is best done early on in a relationship, once there seems a possibility of marriage. It is far easier to accomplish an agreement early, as opposed to after the time wedding invitations have been sent out. There may be lingering resentment over a premarital agreement during the marriage in any event, but having such an agreement thrust upon a party close to the marriage date almost guarantees resentment about the agreement itself and towards the other party.

What Can a Premarital Agreement Accomplish?

Below is a short checklist of issues that most persons ask about, and whether the parties in California have the power to bind the divorce or probate court when the marriage ends:

  • YES
  • NO
  • ???
  • Determine child custody and visitation in advance

  • XX

  • Determine child support in advance

  • XX

  • Limit or eliminate spousal support (Caution - New California case law is expected some time in 2000)

  • XX
  • Keep premarital assets separate
  • XX

  • Make premarital assets community or jointly owned
  • XX

  • Keep premarital debts separate or making them jointly owed
  • XX

  • Determine who will own assets acquired during marriage
  • XX

  • Define income during marriage as separate or community/joint
  • XX

  • Determine who pays the income tax on joint and separate income
  • XX

  • Provide for life insurance, estate planning
  • XX

  • Protect inheritance rights of children from prior marriages
  • XX

  • Define responsibility if support is being paid or received on account of a prior relationship
  • XX

  • Protect from changes in your state's property laws
  • XX

  • Provide that a certain state's laws will apply, no matter where the marriage ends.
  • XX

  • Provide that if either spouse spends time during the marriage increasing the value of a premarital asset, there will or will not be a financial benefit to be shared.
  • XX

  • Provide that if earnings during marriage are used to maintain or improve separate property, there will or will not be a financial benefit to be shared.
  • XX

  • Provide that if a loan is taken out using a separate asset as collateral, there will or will not be a financial benefit to be shared.
  • XX

  • Provide for payment of living expenses during marriage, or expenses for children of a prior relationship
  • XX

Can a Premarital Agreement be Flexible?

Yes, the agreement can provide for rights and responsibilities to change during the marriage. The agreement can provide for a change in rights upon the happening of certain events during marriage. Many parties provide that the longer the marriage lasts, the more benefit one of the parties may receive under the agreement. After all, what may seem fair and appropriate if the marriage ends in one year may be totally inappropriate after a longer marriage.

Should the Agreement be Changed Over Time?

If the agreement is not flexible and it becomes unfair in light of the length of the marriage, one of the spouses may become very unhappy, and may therefore litigate the enforceability of the agreement when the marriage ends. The longer the marriage lasts, the greater care must be taken to determine if the agreement still serves the interests of both parties.

What About Signing an Agreement After Marriage?

It is usually far more difficult to force a spouse to give up rights during the marriage, than to agree to give them up before marriage. But agreements can be made during marriage that define rights and responsibilities about assets and debts, income and expenses. It becomes even more important in these circumstances to have independent legal advice, especially on the part of the party being asked to give up rights.

Are There State Laws Covering Premarital Agreements?

Yes, for example, California has adopted the Uniform Premarital Agreement Act, which can be found in the California Family Code, Sections 1600 - 1617. Section 1615 provides that a premarital agreement is not enforceable if a party against whom the agreement is sought to be enforced proves either of the following:

That party did not execute the agreement voluntarily.

The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:

That party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party.

That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law."

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