Practice Areas

San Diego Prenuptial/Postnuptial Agreements Lawyer

Enough modern marriages end in divorce that it’s hard to say that marriage is forever. And if it’s not forever, should the people embarking on it be making specific plans for its demise—even before they tie the knot? A growing number of couples are saying yes, and signing a formal prenuptial contract governing property and other rights before they say their “I do’s.”

Formal agreements signed after the marriage are also increasingly common. These postnuptial contracts address some of the same issues as prenuptial contracts, but tend to go further, often specifying narrow details of how the spouses will treat each other and share the marital burdens.

Prenuptial Contracts

These days, prenuptial contracts are often employed by “ordinary people” to protect their right to determine what happens to their ordinary amounts of wealth.

The Uniform Premarital Agreement Act (UPAA) is the state law governing California prenups since 1986. It requires that written prenuptial agreements are signed by both parties; the agreement automatically goes into effect when the marriage takes place. An agreement can cover a couple’s present and future property rights, as well as other matters, but it cannot include any agreement that might negatively affect matters of child support, child custody, and visitation, which remain subject to court order.

Principles of general contract law also apply to prenuptial agreements. Agreements require valid consent, meaning that a person must have the mental ability to consent, and that consent cannot be the result of fraud, inappropriate influence, or mistake.

The agreements vary considerably in their details, and may extend to completely non-financial issues. A typical “prenup” inventories the assets, asset protection, and liabilities of both prospective spouses, and expressly declares what each spouse’s rights will be to the inventoried items in the case of death or divorce. If executed properly, the terms of the agreement override the laws that would ordinarily apply to determine that.

Prenuptial contracts may also be used to protect the spouses from each other’s debts.

On the other hand, requesting a prenuptial agreement may well get the marriage off on the wrong foot. Despite rational explanations about why the agreement is no big deal, many prospective spouses probably dislike the idea more than they admit.

As with any document that has a property inventory as its foundation, you need to keep track of how accurate the agreement is as time passes. As new property is acquired and old property transferred, the agreement should be updated.

Enforceability

A properly executed prenuptial agreement is a valid contract. The problem is that many people, whether through inattention or deliberate attempt to take advantage, don’t follow the rules. To ensure that a court will enforce the terms of the prenuptial contract, these condition must have been followed when drawing up the agreement against a spouse:

  • The spouse must have been provided with complete information about the other spouse’s property and finances prior to signing it
  • A minimum period of 7 days must have passed between receipt of the agreement and signing it
  • The spouse must have been represented by a separate, independent attorney when signing the agreement, unless the spouse received full information in writing describing the terms and basic effect of the agreement, including an explanation of any rights and obligations the agreement would nullify, and signed an acknowledgement of receiving the document, and waiving the right to an attorney (probably not a good idea!)

Postnuptial Contracts

Postnuptial agreements are a lot like prenuptial agreements, except they are signed after the marriage has taken place. In many instances, they are prompted by actual marital problems, and represent attempts to settle those problems before a divorce becomes inevitable.

They may address financial matters of all kinds, especially if one spouse has had a major change in finances since the wedding took place. They are also more likely than prenuptial contracts to impose terms governing the specific behavior of one or both spouses. Adultery is one common subject. Wasting the family’s money on such things as shopping, gambling, and drugs are others.

Enforceability of Postnuptial Agreements

Postnuptial agreements may be challenged on the same bases as prenuptial contracts: sufficient time to evaluate the agreement, full disclosure of pertinent information, and independent legal advice.

Legal Help in Drafting or Enforcing a Prenuptial or Postnuptial Agreement

Prenuptial and postnuptial contracts both require legal review to be enforceable. The consequences of signing are significant and permanent—remember, you are letting the terms of the contract replace other legal rights that you have. Before you sign, talk to a lawyer who understands these contracts. For example, why not include a term that adjusts the property as the marriage endures longer? Or have the agreement automatically terminate after a set number of years of marriage?

Protect your rights by getting an expert legal opinion before you sign by calling the Boyd Law Firm family lawyers in San Diego. We care, and we know the law.