Leave Enough Time To Prepare Premarital Agreements
A premarital agreement (also known as a prenuptial agreement) is an agreement entered into by parties who plan to marry specifying the rules governing property and support issues after marriage. Typically, it is used to:
- Protect each spouse’s separate property from becoming community property of both spouses under California law, absent an express subsequent agreement to do so.
- Modify California law governing each spouse’s rights to manage and control property during the marriage.
- Provide that some or all of the income a spouse earns after marriage will be the spouse’s separate property, rather than community property.
- Limit or eliminate each party’s right to obtain spousal support from the other in the event of divorce or separation.
- Govern each party’s liability for debts incurred during marriage as between the parties.
- Limit each party’s right to a share of the other’s property on divorce.
- Limit each party’s rights in the probate estate of the other party.
You should not wait until the last minute before marriage to contact a lawyer about preparing a premarital agreement. To allow each party adequate time to review the agreement before signing it, California law provides a minimum time between delivery of the final version of the proposed agreement to the party and the time that the party is expected to sign it. It is advisable to start the process at least a couple of months before the wedding day.
It is highly recommended that each party have his or her own attorney to review the agreement. Although, it is possible under California law to have a valid premarital agreement where a party is not represented by an attorney, the agreement is far more likely to be upheld in court if each party has their own attorney.
Obviously, married couples make agreements on financial matters all the time without the need for a formal agreement. However, some California statutes provide that they can only be implemented or modified by a written agreement between the spouses. For example, the statute that provides that separate investments in jointly owned property are not entitled to interest or to share in the appreciation of the property (Family Code section 2640) requires a written agreement to vary that rule. Moreover, unlike premarital agreements where the parties are not presumed to have fiduciary duties to the other, in a postmarital agreement made before marriage, agreements after marriage it is presumed that each spouse has a fiduciary duty to the other, which means they cannot take unfair advantage of the other and have an obligation of full disclosure to the other concerning marital finances.
Agreements between spouses concerning their property are referred to as postmarital agreements. Typically, these agreements are used to change community property to separate property or vice-versa, to allocate debts between the parties, to satisfy a statutory requirement, or to change title to property. Given the fact that the law requires that the spouse who wants the agreement must make full disclosure to and cannot take unfair advantage of the other spouse, it is advisable to at least consult with an experienced family law attorney before entering into an agreement involving significant assets or obligations during marriage. However, there is no legal requirement that both or either spouse be represented by an attorney for a postmarital agreement to be enforceable.
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Di Maria & Cone
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Los Altos, CA 94024
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Di Maria & Cone, located in Los Altos, represents clients throughout California, primarily on the San Francisco Peninsula and in Silicon Valley — in communities such as Atherton, Cupertino, Los Altos, Menlo Park, Mountain View, Palo Alto, Portola Valley, Redwood City, San Jose, Sunnyvale, and Woodside.