Prenuptial Agreement

A Prenuptial Agreement is entered into between a soon-to-be husband and wife. In contrast, a Post-Nuptial or Post-Marital Agreement is entered into by a couple after their marriage. These agreements will direct how property will be allocated between spouses either at the time of the parties’ divorce or death, absent a will or trust. It can also set boundaries on the amount of spousal support incase of a divorce. The parties are free to enter into any agreement that deviates from the presumption that all properties obtained during the marriage are community in nature. However, parties should be forewarned that California Courts are reluctant to enforce a Prenuptial Agreement that promotes a divorce.
Parties who enter into an agreement while married, have an inherent fiduciary duty to each other. This fiduciary duty does not exist in Prenuptial Agreements since the parties are not married. However, California Courts have established certain rules to ensure full disclosures of all the assets by both parties. These rules also protect the parties from any pressure such as being forced to sign a Prenuptial Agreement immediately before the wedding.
Although there is no legal requirement that each party have an attorney look over and sign a Prenuptial Agreement it is always recommended to consult an attorney to protect your rights and to ensure that the agreement you enter into will not be set aside at the time of a divorce because of technical reasons.

Post-Nuptial/Marital Agreements

Spouses will sometimes want to enter into an agreement after the marriage, even if they do not anticipate a divorce in their future. This type of agreement is called a Post-Nuptial or Post-Marital Agreement. By entering this agreement, the parties can agree to separate their assets and debts as they see fit and avoid the effects the law would have on such division. Unlike the Premarital Agreements, the parties owe fiduciary duties to each other and must ensure that they fully disclose all of their assets and business dealings.