Premarital Agreements
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By:  Robert C. Brandt, Certified Specialist - Family Law (The State Bar of California, Board of Legal Specialization), of Feinberg, Mindel, Brandt & Kline, LLP

In our progressive society, it has become recently common for men and women intending to marry to require that there be a written agreement prior to the date of marriage. Often the intent of one party requesting the writing is to avoid the same type of problems that party may have encountered from a prior marital divorce in which he or she was required to turn over significant sums of money and/or to pay support to the other. In other situations, one party may be concerned about preserving family assets or property owned before the marriage. Based upon recent changes in the law, a party may also want to limit future exposure relating to spousal support.

Currently, California law generally provides that properties and/or assets earned or received between the date of marriage and the date of separation are presumed to be community. This means that in the event of a divorce all such assets are to be equally divided. The law also provides that a party to a divorce or legal separation proceeding can seek alimony or spousal support from the other. Under current law, subject to full and complete disclosure as well as compliance with statutory requirements, parties can make contracts prior to marriage which will affect their obligations in the event of a divorce or separation.

The current statutes with regard to premarital agreements are found in Family Code Section 1600 and its subparts. If a party to a marriage is of the inclination to require a written contract with the other party prior to marriage it is most important to move forward as quickly as possible as there are timing requirements. If a Premarital Agreement is prepared and executed by the parties without compliance with statutory requirements the agreement may very well be subject to unenforceability and could be set aside in the event of a divorce or legal separation proceeding by one party based upon the failure of both parties to execute and prepare the Premarital Agreement in a timely fashion and with respect to other requirements.

A Premarital Agreement is enforceable if the following factors are shown:

That the party against whom enforcement is sought proves that he or she did not execute the agreement voluntarily or that the agreement was unconscionable when it was executed and before execution all of the following apply to that party:

1. The party was not provided a fair, reasonable and full disclosure of the property or financial obligations of the other.

2. That the party did not voluntarily and expressly waive, in writing, any right to the disclosure of the property or financial obligations of the other party beyond the disclosure provided.

3. That party did not have or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

It is also important to note that if one party seeks to set aside the Premarital Agreement in the event of a divorce or legal separation proceeding, typically the court will find that the Premarital Agreement was not executed voluntarily unless all of the following is found:

a. The party against whom enforcement is sought was represented by independent counsel at the time of the signing of the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent counsel.

b. The party against whom enforcement is sought had not less than seven (7) calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel at the time the agreement was signed.

c. The party against whom enforcement is sought if unrepresented by legal counsel was fully informed of the terms and basic effect of the agreement, understood the language, and acknowledged having understood the language and terms of the agreement.

d. That the agreement was not executed under duress, fraud or undue influence and that the parties did not lack capacity to enter into the agreement.

In situations where a waiver of spousal support is required, the Family Code specifically provides, in pertinent part, that any provision in a Premarital Agreement regarding spousal support, including, but not limited to, a waiver of support, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of the enforcement.

There are a number of other requirements that may need to be complied with in order to make certain that the Premarital Agreement is binding. The reader should not assume that the information contained herein is inclusive of all the rules to be followed.

Clearly, there are specific and, for the most part, intricate requirements with regard to securing an enforceable premarital agreement that will withstand the test of time and the change in the law. While a litigant is not required to retain legal counsel with regard to proceeding forward with divorce and/or legal separation proceedings, the law currently indicates that it is far preferable to have the benefit of independent legal counsel representing a party with respect to the execution of a Premarital Agreement. While the execution of a Premarital Agreement is certainly not the most romantic transaction a party can engage in prior to marriage, a full and complete understanding of the process may help to lessen the tensions of dealing with future financial issues rather than solely deciding where the wedding ceremony will be held, who will be invited and what will be on the wedding menu.