At the Law Office of Nicole L. Aeschleman, we will help couples customize a prenuptial or postnuptial agreement that fits your needs. A prenuptial agreement, also known as a premarital agreement, is an agreement drafted between potential spouses prior to marriage. A postnuptial agreement, or marital agreement, on the other hand, is prepared by spouses during their marriage. The terms of a prenuptial or postnuptial agreement can consist of various provisions. Some issues that are often addressed in such agreements include:
- Asset distribution in case of a divorce or legal separation;
- Spousal support;
- Management of assets during the marriage or union; and
- Treatment of gifts and inheritances.
Premarital (Prenuptial) Agreements
A premarital (prenuptial) agreement provides a mechanism for couples to deal with various present and future interests. Generally, couples decide the character of property acquired during marriage (i.e. as separate property or community property) as well as how property will be distributed if the couples divorce. This is important because without a premarital agreement, California has extensive law on ownership of property that will ultimately dictate how property acquired during marriage is distributed. Notably, California is a community property state, meaning that all property acquired during the course of marriage is presumed to be owned by both spouses or domestic partners in a 50/50 allocation. Additionally, all property acquired before marriage and after separation is presumed to be separate property. However, premarital agreements allow couples to override these presumptions, which will likely have a significant impact on their financial rights. Thus, it is important to consult with an experienced family law attorney to ensure that you are protected and that the premarital agreement effectuates your interests. Also, there are strict procedural requirements that must be adhered to for the agreement to be valid if the agreement is challenged in Court.
Who Should Have a Premarital Agreement
A premarital agreement, often referred to a prenup, may be advisable if you have a large separate estate coming into the marriage or if you anticipate that you will acquire substantial assets during marriage, whether separate or community. People often misconstrue premarital agreements as only for the wealthy. However, premarital agreements can also be a valuable tool for any couple that simply wishes to predetermine how finances and assets will be handled during the marriage and upon the unfortunate event of a divorce.
NOTE: IF YOU ARE CONSIDERING ENTEREING INTO A PREMARITAL AGREEMENT (A.K.A. PRENUPTIAL AGREEMENT) PLEASE CONSULT A FAMILY LAW ATTORNEY.
Postmarital (Postnuptial) Agreements
Postmarital agreements, like premarital agreements, allow spouses and domestic partners to contract over an array of issues. Postmarital agreements, however, are distinguishable because the couple enters into the contract after they have married or entered into a domestic partnership.
Postmarital agreements include what is commonly referred to as a Marital Settlement Agreement (MSA). Marital settlement agreements are used when parties are contemplating divorce, separating, or actively dissolving their marriage. This agreement allows parties to determine financial issues (including property distribution), reimbursements claims, spousal support, child support, and attorney’s fees, among numerous other issues. Overall, marital settlement agreements are very beneficial for parties that are able to cooperate and want to reduce the fees, costs, and time associated with litigation.
Public Policy Limitations
Public policy plays a fairly large role in premarital and postmarital agreements. The law will invalidate sections of an agreement or an entire agreement if it determines that it is contrary to public policy.
For instance, couples may not abridge one spouse’s child support obligations. California has a strong public policy towards both parents supporting their minor children. Accordingly, an agreement that attempts to limit that obligation or attempts to impede the Court’s jurisdiction over child support will be invalid.
Additionally, while a spouse may waive their right to receive spousal support, California has strict requirements, driven by public policy, to accomplish an effective waiver. For instance, Courts will look to see if the party waiving their right was represented by independent counsel and whether the waiver of support is unconscionable at the time of enforcement.
In short, public policy plays a large role in the validity of premarital and postmarital agreements. As a result, it is important to seek the advice of a family law attorney to make sure that your agreement is in accordance with the law and will not be invalidated on public policy grounds.
Warning: The Law Regarding Premarital Agreements is Evolving
Currently, the law regarding premarital agreements is in flux. As of January 1, 2002, the Legislature made significant modifications to the Uniform Premarital Agreement Act, which governs over premarital agreements. Ultimately, the appellate courts will have to interpret the finer points of many of the newly enacted legislation. As a consequence, it is possible that provisions of an agreement or the entire agreement may be invalid once the appellate courts resolve the ambiguities of the new laws. Therefore, it is critical that couples consult an experienced attorney that is up-to-date with the current status of premarital agreements law. It is also important to remember that even an experienced and up-to-date attorney can only give you their best advice based on the current status of this evolving area of the law.
Call a San Jose Premarital Agreement Lawyer
The San Jose prenuptial agreement lawyers at Aeschleman Law can assist you in determining if a premarital or postmarital settlement agreement is right for you. Additionally, Aeschleman Law will help you draft or review an agreement to ensure that your interests are being effectuated and that your rights are being protected.
A prenuptial agreement may be advisable if you have a significant separate estate coming into the marriage, if you anticipate that you will acquire substantial assets during marriage, whether separate or community, or if you simply wish to predetermine how your finances and assets will be handled during the marriage and upon the unfortunate event of a divorce. If you are considering a prenuptial or postnuptial agreement, it is important to speak with an attorney. There are strict procedural requirements that must be adhered to for the agreement to be successful if later the agreement is challenged in Court.
At the Law Office of Nicole L Aeschleman, we can help you customize an agreement the meets your needs. If your spouse has already drafted a proposed agreement, we will review that agreement with you to ensure that you fully understand its terms, and negotiate any possible changes on your behalf.
If you are contemplating a divorce or separation where an agreement is at issue, we will investigate the validity of such an agreement and help you through litigation involving the agreement. Contact the Law Office of Nicole L Aeschleman for a reduced rate full one-hour consultation.