CALIFORNIA PRENUPTIAL & POST NUPTIAL AGREEMENTS
A People’s Choice can save you hundreds of dollars by preparing your California prenuptial or post nuptial agreement instead of an expensive attorney!
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Prenuptial Agreement: A Prenuptial Agreement is an agreement between two people who are anticipating getting
married, which becomes effective upon marriage, and deals with a wide variety of issues (including property) between prospective spouses. These issues usually include:
- Each parties’ rights and obligations concerning property owned by either or both of them before the marriage.
- Each parties’ rights and obligations concerning property acquired by either or both of them after the marriage.
- The disposition of property upon separation, divorce, or death.
- The law governing the agreement.
- Any other matter, including their personal rights and obligations that is not in violation of public policy or a statute.
Post Nuptial Agreement: A Post Nuptial Agreement is an agreement entered
between two persons who are married to each other. The agreement decides how the parties will hold title to property in the future, how they will hold the property they
currently own, and how their property will be divided in the event the marriage terminates. The agreement can also address the issue of spousal support in the
event the marriage ends in divorce. Although a Post nuptial Agreement is similar to a Premarital Agreement, because the duty between married persons is different than
the duties between unmarried parties, Post nuptial Agreements are interpreted and enforced differently.
Having a Prenuptial or Post nuptial agreement does not necessarily indicate a lack of trust. In today’s society, one in 10
couples enter into some type of marital agreement. Nobody wants to think at the beginning of a marriage that it will ever end
in divorce; however, the divorce statistics in the United States are staggering.
- In 2008, 46% of all marriages involved a remarriage for one or both spouses.
- It was estimated that 40% of all marriages have ended in divorce as of 2008.
- On average, first marriages that end in divorce last about 8 years.
- The median time between divorce and a second marriage is about 3 ½ years.
- Second marriages are at greater risk of ending in divorce than first marriages.
- More people are part of second marriages today than first marriages.
Divorce in California:
California community property law provides that all community property (property acquired during
the marriage while the parties are living in California that is not a gift or an inheritance) is divided equally upon divorce. It
usually does not matter if the property is in one party's name alone. If property is acquired during marriage, whether it be in
one person’s or both parties’ names, it is usually classified as community property, with some exceptions. Property owned
before marriage is separate property and cannot be divided by a court and belongs to that party. However, if community
funds or efforts have been used to to improve, enhance or contribute to separate property, this can create a “community property interest” in that separate property.
The Positive Effect of a Prenup:
Having a Prenuptial Agreement may, in fact, actually strengthen a couple’s relationship.
The process of drafting a Prenuptial Agreement requires that both parties fully disclose their financial situation and requires
each party to openly and honestly discuss how the couple will handle their money and plan for their future. Prenuptial
agreements actually better prepare couples for marriage by forcing them to discuss certain important financial issues such as how money is to be earned and how it is to be spent.
A properly prepared and executed premarital agreement provides both parties with some measure of certainty as to how
property and debts will be divided if their marriage is unsuccessful. It can also provide that your spouse never acquires a community property interest in your separate property.
Prenuptial Requirements for California:
California has developed strict requirements for the drafting and execution of
premarital agreements. In California, a premarital agreement must be in writing and voluntarily signed by both parties. For
execution to be voluntary, the party waiving rights under the agreement must have been represented by or have explicitly
waived independent counsel, have had at least seven days to look the agreement over before signing, and have not been
subjected to any duress, fraud or undue influence before execution. The statute also allows the court to look at any other
factors it deems relevant in analyzing the voluntariness of the execution.
The law also provides for opportunity of reasonable and full disclosure of property of financial obligations of the parties, prior to execution.
What a Prenup or Postnup cannot do: California Prenups and Postnups cannot control child custody or child support.
They cannot control a person’s behavior and they cannot punish a spouse for being unfaithful. These types of agreements also cannot regulate the practice of religion.
A People’s Choice can save you hundreds of dollars by preparing your California pre or post nuptial agreement instead of an expensive attorney!