Premarital agreements, or “Pre-Nups”, as they are commonly referred to, are agreements made between a couple in anticipation of marriage. The purpose of the agreement is to create a method of dealing with the issues that could arise in the event of the couple separation and divorce. In the absence of such an agreement these issues will be decided by application of California Family Law, including the law applicable to community property and spousal support. With a valid Premarital Agreement the law as applied to divorce can be avoided, at least in part.

The two areas where Premarital Agreements can alter what would normally be the law is (1) community property and (2) spousal support. The parties may agree that community property law will not apply in the case of their divorce. A common example is where a party owns a house or business before marriage and wants to be sure that no community interest is created during their marriage, such as to give their spouse a right to a portion of the value of the residence or business. Likewise, a party might want to protect his or her future retirement benefits from sharing with the spouse in the event of divorce. Often, the parties want to establish that all of the property they now own or will acquire in the future will remain their separate property in the event of a divorce, except for funds deposited in to a joint account for joint expenses. These types of arrangements can be achieved by a Premarital Agreement. One of the most important requirements to the validity of the Premarital agreement is a full disclosure of all assets and debts of both parties.

Prior to a 2000 Supreme Court case, any premarital waiver of spousal support was considered against public policy and any agreement containing any such wavier was, to that extent, invalid and unenforceable. In other words, a premarital agreement could contain a provision whereby both parties give up their right to ask for spousal support in the case of the parties’ divorce, but the court would ignore that provision and deal with the issue as though the agreement never existed. The theory was that no one could predict the circumstances which would impact on the issue of spousal support in the future and to foreclose a party from asking for it in a divorce was unfair. The Supreme Court case and the law following it after 2000 holds that the issue of whether the provision is enforceable or not should be decided by the facts of each case and not automatically rejected. I always advise my clients that it is very risky to assume that the court will uphold a premarital waiver of spousal support. All the court has to find to invalidate the waiver is that the waiver is “unconscionable at the time of enforcement”. ALSO, an amendment to Family Code Section 1612 now requires that anyone waiving his or her right to spousal support, be represented by his or her own attorney. If a party is not represented by an independent attorney at the time the waiver is made, any spousal support waiver will not be enforced against that party in the event of the parties’ divorce.

Another issue to be considered is duress on the part of either party in entering into the agreement. A prospective husband cannot expect to have his premarital agreement enforced if he tells his prospective wife that she must sign the agreement shortly before the wedding, after she has purchased the dress and all the invitations are sent out. The law provides that within seven days of the wedding, a premarital agreement will be deemed not executed voluntarily. I maintain that more time in advance of the wedding is required for careful, free and voluntary contemplation of the effects of the premarital agreement, to enhance the probability that the agreement will be upheld in the case of divorce.

Premarital Agreements are highly technical and exacting documents and should be prepared by a qualified family law attorney.