A Guide Discussing Marriage Agreements in California
When couples get married in California, they may legally enter into marriage agreements that outline certain terms to follow during the marriage and if they should separate.
Principally, these terms concern each spouse’s rights to personal or marital property as outlined in prenuptial and postnuptial agreements — but they may also address other matters. If these agreements are correctly drafted, the California courts will likely recognize their validity and can enforce the terms.
However, California has its own property laws in the event of divorce. To be valid, therefore, an agreement setting out different terms must be prepared and signed without fraud, concealment, undue influence or duress.
Sometimes, marriage agreements are challenged. This can lead to complications when married couples divorce, so it helps to know more about such agreements and discuss the issue with a family attorney if in any doubt.
Why should engaged couples consider a marital agreement in California?
Traditionally, prenuptial agreements were mainly prepared and signed if one or both of the spouses was of high net worth — sometimes if a large disparity of wealth was present.
However, such marital agreements have become far more common among professional couples in California — especially as the trend to get married later has grown. Countrywide, a survey conducted by The Harris Poll found that
If a couple is engaged to get married later in life, it is more likely that they have already accumulated significant property. They may want to protect this from California’s community property laws, under which, any property acquired during the marriage by either spouse is presumed to be owned by each spouse equally.
Marital agreements can protect spouses from their partners’ potential debts too — such as high medical bills, for instance. Debts generally transfer from one spouse to another upon death. A prenup can prevent this.
A marriage agreement can also prevent disputes over the family home, which is one of the most-disputed assets during divorces — especially if one partner purchased the home before the marriage and marital assets were used to pay bills, renovate and maintain the home.
It makes sense for couples entering a marriage to document their assets before tying the knot — to avoid confusion and disputes if the relationship should break up. Discussions should include all financial assets, such as retirement accounts, brokerage accounts and savings, etc.
This will allow spouses to determine their own rules for financial division during divorce rather than relying on the state’s laws.
Regardless of whether you decide to finalize a prenup, the types of matters discussed during the formation of a prenup are generally considered to be important for marrying couples to consider.
Prenuptial agreements in California
A prenuptial agreement or “prenup” is a contract between two prospective spouses, generally covering the following types of financial matters:
- Property division
- Spousal support (alimony)
- Debt allocation
- Financial obligations during the marriage
- Post-death finances for either spouse
While prenups usually address financial matters, they may also include other matters like pet ownership.
The State of California promotes fair and equitable separation terms for divorcing couples. Prenups must, therefore, be in writing, notarized and fair and include full financial disclosure from both parties. They must also meet the following criteria to be valid:
- Both parties must seek independent legal counsel or expressly waive that right in a separate legal agreement.
- In the absence of legal counsel, each party must be informed of the force and effect of the agreement before signing it (with written proof of such).
- Both parties must sign the agreement voluntarily with full knowledge and with the capacity to understand.
What is the prenup “seven-day rule” in California?
Another requirement for a prenup under Section 1615 (c)(2)(B) of the California Family Code is that, for any prenup signed after January 2020, the parties must have no less than seven days between being presented with the final agreement and signing it.
This is known as the “seven-day rule” and means you must plan well in advance of your wedding day.
Postnuptial agreements in California
A postnuptial agreement is very similar to a prenup and generally covers the same types of matters — principally, asset and debt division.
Postnups also have similar requirements to be considered legally valid but there is a key difference here: the California courts assume a prenuptial agreement is valid upon the date it is signed (unless it is challenged) while a postnuptial agreement is deemed invalid unless proven otherwise, i.e., they require court approval before being deemed valid. This may require assistance from a family attorney.
The only material difference between prenups and postnups is the timing. Postnups are signed after the marriage has already started rather than before.
Sometimes, couples only realize after years of marriage that an agreement can help clarify important matters and prevent disputes if they ever separate; at other times, their financial outlook changes substantially, increasing the need for such an agreement.
How long after marriage can you create a postnuptial?
A postnuptial agreement may be created and signed at any time after a marriage has started and may be considered valid as long as it meets all requirements under California law.
Marital settlement agreements when a marriage ends
A marital agreement can also be made after a marriage ends — as part of the divorce settlement.
If there is no such agreement, a judge will have to decide important matters such as property division and spousal support, as well as child custody, child support and parenting schedules.
Whether you want to negotiate, draft, challenge or defend a marital agreement in California, the family attorneys at The Sands Law Group APLC can help. Contact us or call at 213-788-4412 today for a free 15-minute phone consultation about your case.