Prenuptial and Postnuptial Agreements
Many couples enter into prenuptial or postnuptial agreements, in spite of a general misconception that these agreements indicate a lack of trust or a lack of romance in the relationship. When partners fail to sign a prenuptial or postnuptial agreement, their property is subject to the California Family Code and Probate Code. This means that the spouses lose control over the disposition of property they acquire during the marriage. At the Calderone Law Firm, our family law attorneys can negotiate and draft these agreements on behalf of Manhattan Beach residents and other individuals, or we can help you challenge them during divorce if they do not adhere to the statutory requirements.Enforceability of Prenuptial and Postnuptial Agreements
In California, the Uniform Premarital Agreement Act governs what you may include in your prenuptial agreement. Since the agreement must adhere to legal requirements in order to be enforceable in the future, it is important to retain an experienced lawyer to negotiate and write the agreement.
Under California law, all property obtained during a marriage, except for gifts and inheritances, is considered “community property.” The property belongs to both spouses equally. However property acquired before you married or acquired as a gift or inheritance is "separate property." This means it belongs only to the spouse who acquired it, and it will not be divided during the divorce except when it has been transmuted into community property. A prenuptial agreement can be useful because it may provide that spouses never acquire a community interest in certain separate property. For some spouses in California, it is preferable to maintain separate interests in all property.
Without a prenuptial or postnuptial agreement, it may be necessary for divorce attorneys to retain forensic accountants to trace the date of purchase, the price, and increases or decreases in the value of all property acquired during the marriage. When one or both partners have very valuable assets like pensions or stock or intellectual property, the failure to have a prenuptial or postnuptial agreement can result in extremely expensive litigation at the time of divorce.
Prenuptial agreements and postnuptial agreements can provide instruction on how all separate and community property assets and debts should be treated if the couple separates or divorces. In some cases, spouses agree that certain property will remain separate property, while all other property acquired during the marriage will be treated as community property.
In California, prenuptial agreements can never set forth decisions about child custody or child support. Since child support belongs to the child and not the parent, parents cannot decide to contract away the right to this support. However you can waive or limit spousal support as long as the clause is not "unconscionable." For example, if there is a significant disparity in the amount of wealth between two spouses, and one spouse agrees to get no support but has no opportunity to consult an attorney because she is handed the agreement the day before her wedding, a court may find this unconscionable.
In some cases, couples only decide to create a formal agreement about property and income after getting married. This is a postnuptial agreement, and it is subject to various rules. It differs from a premarital agreement most substantially in the fact that spouses are considered to have a fiduciary or confidential relationship to each other. Each spouse owes the other spouse a duty of good faith and fair dealing and may not take advantage of the other unfairly. However, no fiduciary relationship exists between those about to be married.Contact a Manhattan Beach Attorney to Protect Your Rights during Divorce
Prenuptial and postnuptial agreements can be crucial if a marriage does not work out. The participation of experienced divorce lawyers can help people in the Manhattan Beach area make sure that an agreement is enforceable, should they ever need to use it in the future. At the Calderone Law Firm, we represent clients in Manhattan Beach, El Segundo, Hermosa Beach, Palos Verdes, Redondo Beach, San Pedro, and Torrance. Contact us at (310) 706-4101 or via our online form to set up an appointment.