Pre/Post Nuptial Agreements

California is a “community property” state. This means that, absent other agreement between the parties, in the case of divorce, both spouses will share equally in all of the property acquired during the marriage, as well as all debt incurred. Property acquired includes real estate, savings, pensions, etc. Couples can use prenuptial and postnuptial agreements to limit how this property and debt division will affect them.

Prenuptial agreements

A prenuptial agreement, also known as a “prenup,” is a written contract drawn up by a couple before they are married. It typically lists all of the property each person owns as well as any debts and specifies what each person’s rights to the property (and the debt) will be should the marriage end by divorce or with the death of one spouse without a valid will.

Spouses can use prenuptial agreements to clarify financial rights to property, protect themselves from the other spouse’s debts, and avoid costly arguments in the case of divorce. Prenuptial agreements often intersect with other areas of law such as probate, insurance, and federal ERISA law (dealing with pensions.) Because of these complex issues, drafting a prenuptial agreement is a complex endeavor best undertaken by an attorney.

Postnuptial agreements

A postnuptial agreement is a written contract signed by the two spouses in a married couple that specifies how they will divide property and debt, and how spousal support will be determined if they should divorce. It differs from a marital settlement agreement in that spouses signing a postnuptial agreement are not currently involved in (and are usually not contemplating) divorce.

A postnuptial agreement also differs from a prenuptial agreement, and not just in the timing. While prenuptial agreements are signed before marriage, and postnuptial agreements are signed after, the way that courts look at the parties is very different. Before marriage, the parties are entering into an agreement with no duty to each other. After marriage, however, courts consider that the parties have a fiduciary relationship (i.e. a legal relationship of duty, confidence and trust) towards each other.

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If you think we can help you with your prenuptial or postnuptial agreement, please contact us by calling (415) 294-0303 or by writing to us using the contact form on the right side of this page.

We look forward to hearing from you.