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By Stephen C. Ross, Esq.
August 3, 2013 (San Diego) – A “premarital” (also called “prenuptial” or “antenuptial”) agreement is a contract entered into between prospective spouses in contemplation of marriage, or between domestic partners in contemplation of registering their partnership with the State. The agreement establishes property rights and financial responsibilities upon consummation of the marriage or registration of the partnership. A premarital agreement is typically intended to create conditions that will preserve a forthcoming marriage or registered domestic partnership.
Premarital agreements are becoming increasingly common as more people enter marriage with children and property from a prior marriage and want to preserve preexisting property rights and interests for their own children and heirs. A properly drafted agreement may avoid disputes concerning property rights, financial interests and inheritance rights if the contemplated marriage or partnership breaks up. Courts favor premarital agreements provided they do not violate public policy and are freely entered into by the parties.
A premarital agreement fixing or waiving child support is invalid to the extent it violates the parents’ statutory child support obligation. In addition, spouses owe each other a mutual duty of support while married and living together that cannot be validly waived by any agreement.
The Uniform Premarital Agreement Act (UPAA) governs premarital agreements entered into on or after January 1, 1986. The UPAA is contained in California Family Code Sections 1600-1617. The UPAA was amended effective January 1, 2002 adding several technical requirements to the enforceability of premarital agreements. The amendments include the following:
1. Unless independent legal representation is expressly waived in a separate writing, the party against whom enforcement of the agreement is sought must be represented by independent counsel when the agreement is signed;
2. If the agreement contains any provision affecting spousal support, the party against whom enforcement of the agreement is sought must by represented by independent counsel;
3. The disclosure of financial and property information must be reasonable, fair and complete;
4. A party presented with a premarital agreement must have at least seven days to review it before signing;
5. A party not represented by counsel must be provided a separate writing fully informing him or her of the terms and effect of the premarital agreement and the rights and obligations he or she is giving up by signing the agreement.
Premarital agreements must be in a writing signed by both parties and are enforceable whether or not supported by consideration. It is advisable, but not required, to record a premarital agreement affecting real property in the county (or counties) where the property is located.
A premarital agreement may include many different subjects, including:
1. The rights and obligations of the parties in any property belonging to either or both of them whenever or wherever obtained. The right of each party to buy, sell, use, transfer, lease, encumber or otherwise manage and control property. The disposition of property upon separation, dissolution, death or any other event.
2. The ownership rights in a life insurance policy and disposition of policy death benefits.
3. The State whose laws govern construction of the agreement.
4. Any other matter not in violation of public policy or a statute involving a criminal penalty.
Stephen represents estate planning, trust, will, probate, trust administration, business formation, stepparent adoption and family law matters. He conducts estate planning and probate seminars throughout San Diego County. For more information or to schedule a seminar contact Stephen at (619) 795-8524, stephen@stephenrosslaw.com or visit www.stephenrosslaw.com.
Disclaimer: Information contained in this article is believed to be accurate. However, you should seek professional legal advice before relying on the information.
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