In preparation for marriage, many couples consider entering into a contract to protect their assets and/or to set forth terms that will govern their rights and obligations during the pending marriage or upon the occurrence of a divorce. These sorts of contracts are called Premarital Agreements or Prenuptial Agreements, and very specific law applies to shape both the form and content of these agreements.
Generally, the parties to a Premarital Agreement may agree to any terms they desire in a Premarital Agreement. The agreement may cover any asset, property, or funds a person will be bringing into the marriage as well as any asset, property, or funds that will be acquired during the marriage. However, child support and child custody may not be included in a Premarital Agreement.
Under California law, there are certain requirements that must be met for a Premarital Agreement to be valid. The document must be in writing and must be voluntarily signed by both parties. For execution of the Premarital Agreement to be voluntary, the party waiving any rights must have been represented by an independent attorney or must have waived independent counsel in writing, must have had at least seven days to review the Premarital Agreement before signing it, and there must be no evidence of under duress, fraud, or undue influence. Each party must also prepare complete disclosures including detailed information related to all assets and liabilities.
Furthermore, there are certain provisions that, if included in the Premarital Agreement, are subject to additional requirements. For example, if the Premarital Agreement will include a waiver of spousal support, it may be found to be “unconscionable” if the party waiving his or her right to spousal support was not represented by an attorney. Also, the spousal support waiver will not be enforced if they are found to be “unconscionable” when the provision takes effect.
Contact the Premarital Agreement specialists at Bremer Whyte Brown & O’Meara LLP for more information.