Why Have a Premarital or Postmartial Agreement?

Martial Agreements can deal with property, support, general or specific decision-making,  during marriage, on death, divorce, or disability. California courts encourage and support Martial Agreements. 

Premarital Agreements promote certainty, reduce conflict, and, consequently, the expense of death or divorce.  Most couples agree that having their conversation about financial and other decisions is at least as important as discussing who to invite to their wedding.

Why are attorneys needed?

To do what you and your intended (or spouse) wish your Pre-marital or Post-marital Agreement to do for you, competent counsel is a must.  Not only for you to be safe, but to ensure the Agreement is both valid (enforceable) and says what each of you want it to say.  Two attorneys may be needed.  One for each of you is necessary if your Agreement limits spousal support.

In consulting with counsel, expect your questions to be answered.  But do not be surprised if many more arise.  For you and your intended or existing spouse, the goal is making informed choices.  Knowledgeable discussions lead to comfortable and satisfactory agreements, ones that both of you understand, respect, and support.

Are there other reasons to have an attorney involved?

Yes.  Probate, with or without a Will, rights to retirement benefits, and insurance contracts are examples of areas of law that have rules separate from the Family Code.  Legal advice concerning these interactions is important for you to have from your attorney.  Not to make  decisions creating the results you want is a mistake.  When making a Pre-Marital or Post-Martial Agreement, it is also timely to consider creating an Estate Plan, a living trust, particularly in a blended family where there are children of another relationship.

What typically goes into in a Marital Agreement?

What each of you expect from your marriage, from a financial point of view, is the general topic.  How decisions will be made is another.  Specific examples include:

  • What will be the character of the assets and debts each of you will bring or have brought into your marriage.  Will it be, separate, joint/community, or what?  Without a proper Agreement, assets and debts can become community property and subject to court dispositions in probate or divorce proceedings with unexpected and unintended results.
  • What about earnings and expenses during the marriage? What is the role each of you will have to earn, raise children, make financial or other decisions, or set goals and expectations during your marriage?
  • What is your plan should death, disability, or divorce strike? Is an estate plan contemplated? Is any agreement affecting spousal support to be included? Is insurance to be relied on in case of death or disability?  If so, how much and what sort?
  • Is a home being brought into the marriage?  If so, will it become community or remain separate?  Or will there be reimbursement for its separate value, or for the down payment on a new home paid from separate funds?
  • How will important decisions be made if you do not agree?  And are some decisions individual, and not joint?  If so, which?

Can spouses make a post marital agreement that is valid?

Yes, but the technical requirements of a valid, enforceable agreement made after marriage are higher than for a pre-marital agreement.  After marriage, each spouse has a fiduciary duty to the other.  Full disclosure as well as fairness (not taking advantage) are critical to a valid post marital agreement. Counsel for each of husband and wife is not only recommended, and, if spousal support will be affected, necessary.

Some final thoughts

The legal rules for creating Pre-Martial & Post-Marital Agreements are complex.  You can avoid ever having to fight it out by spelling it out in your agreements.  Love may not be enough if the going gets really tough.  Simplify and make your economic and co-parenting life more certain.  Create Marital Agreements that work.

Call on the knowledge, care and experience of Newport Divorce Attorney.  (949) 752-2727

Note too that a neutral mediation process may be a best-choice option for you.