A Premarital agreement is a contract that persons enter into before marriage to establish their property and support rights during marriage and in the event of divorce. Practically speaking, these agreements accomplish three objectives. First, they set forth what property each person is bringing into the marriage (which is characterized as separate property). Second, they determine how property acquired during marriage is characterized (community or separate). Third, the parties can make an agreement with regard to the issue of spousal support. The parties cannot restrict or waive child support and they cannot determine child custody and visitation. However, agreements regarding a child’s residence, religious training and education, while not enforceable, may have some influence on future agreements and orders in the event of divorce.
Should divorce occur, the disadvantaged spouse will often attack the agreement as not complying with California Law or as being unconscionable, that is, extremely unjust or overwhelmingly one-sided. To avoid attack it is important to start early. At least three months or more before the marriage. The parties also need to make full disclosure of their assets and debts and they must have the written agreement at least one week before it is signed. Finally, both parties should have their own independent lawyer. This is required for spousal support agreements, but highly recommended for all agreements as it minimizes the possibility of the unrepresented spouse later claiming that they didn’t understand what they were signing.
After marriage the parties can make a post marital agreement regarding the character of their property (namely, community or separate). For example, they can agree that a house will be the separate property of one spouse and the family business the separate property of the other spouse. They can also agree whether future earnings or property acquisitions will be community or separate. What they cannot do is make agreements regarding spousal support. Like a Premarital Agreement, parties who want their post-marital agreement to be enforceable should each be represented by a separate lawyer.