Prenuptial / Premarital and Postmarital Agreements
Bringing up the subject of a premarital agreement is difficult for either prospective spouse, but much more so for the prospective spouse who is financially better off than the other prospective spouse. Raising the issue of a premarital agreement may be interpreted by the less financially better off spouse as an indication that he or she might be a gold digger. I advise clients to get the discussion of having a premarital agreement out in the open as soon as the discussions of marriage commence. That way it is not a surprise to the other party. I also have various ways to suggest how the subject matter of a premarital agreement should be brought up. Having been a family law attorney for 38 years and having been involved in hundreds of California divorce and family law cases, I highly recommend that parties contemplating “marital bliss” have an enforceable California premarital agreement. I realize raising the issue of a California premarital agreement and/or negotiating a California prenuptial agreement is not consistent with the notion of our romantic ideal of a marriage or domestic partnership because such an agreement forces the prospective spouses to contemplate the consequences of a California divorce.
Premarital agreements are governed by the California Premarital Agreement Act, California Family Code §1610, et seq. Having a California premarital agreement can protect prospective spouses who have businesses and or separate property started or acquired before marriage. A California premarital agreement may also protect a spouse from having to pay spousal support. Further, entering into a California premarital agreement may cause for a significant reduction of attorney fees and costs in the event of a dissolution of marriage. Individuals who have children from prior relationships can also protect inheritance rights for those children with an enforceable California premarital agreement. Prospective spouses who have gone through California divorces may also be well aware of the expense, both financial and emotional, that he or she experienced in a previous divorce. Therefore, enforceable California premarital agreements offer a practical and common sense approach to two individuals contemplating marriage.
Marriage is, in addition to the romance and companionship, a business relationship between two individuals. The spouses may share common expenses, income, acquire and use assets, possibly raising children, and overall potentially share income that either earns or acquires during marriage. Enforceable California premarital agreements, in my opinion, are prudent and practical, as it both establishes and protects each prospective spouse’s property rights as you enter into a marriage/domestic partnership. Additionally, such an agreement can eliminate potential conflict by clarifying how certain financial and property matters will be handled both during the marriage/domestic partnership and/or upon a California divorce.
Prenuptial agreements can be particularly beneficial when one or both parties to a marriage/domestic partnership own substantial assets, investments, and/or real and personal property. Nathan James of SEIFER, MURKEN, DESPINA, JAMES and TEICHMAN ALC, has extensive experience providing compassionate and detailed legal representation in regard to enforceable California premarital agreements. Nathan James has drafted and negotiated hundreds of enforceable California premarital agreements and has litigated their enforceability as well. He is sensitive to the peculiar environment a premarital agreement may cause however is a seasoned experienced attorney who can offer the necessary legal advice to clients in the San Francisco, Marin, San Mateo, Alameda and other Bay Area counties with regard to drafting, negotiating and enforcing and/or invalidating California premarital agreements. Nathan James is diligent and pays attention to detail.
One might ask “why do I need a California premarital agreement?” The answer is an enforceable California premarital agreement validly entered into between two consenting persons contemplating marriage or entering into a domestic partnership clearly sets forth how certain issues are to be decided in the event of a California divorce. Enforceable California premarital agreements can help avoid litigation and attorney’s fees and costs, in addition to the emotional turmoil a California divorce causes. Enforceable California premarital agreements are subject to the same formalities as any other enforceable agreement and have other requirements in order to be considered fair and/or enforceable, as set forth in the California Premarital Agreement Act. One of the requirements of an enforceable California premarital agreement is that each party to the agreement fully disclose to the other their assets and debts as well as their income. Following that disclosure, I suggest that each party sign a mutual waiver of further disclosures prior to signing the enforceable California premarital agreement. A factor which will likely determine the enforceability of a California premarital agreement is whether both parties to the agreement were represented by legal counsel. A presumption of unfairness is created if either party is not represented by counsel and is not explained the full legal consequences of entering into a California premarital agreement. I find it virtually impossible to explain the full legal consequences of entering into a California premarital agreement, and thus I require the other spouse to be represented by counsel if I’m going to be involved in drafting and/or negotiating a . California pre-marital agreement on behalf of a client. It is also possible for parties who have already married to enter into what is commonly referred to as a post marital agreement. Again, I believe both parties need to be represented by legal counsel in the negotiation and drafting of a post marital agreement. Proper and full disclosures are also required.
The tricky part of a post marital agreement is following marriage spouses occupy a special relationship to each other, one that requires the utmost truth and honesty. This . special relationship creates what is commonly referred to as fiduciary duties between the spouses. Thus, a claim that one spouse was not honest and/or breached his or her fiduciary duty when entering into the post marital agreement might be a perfect defense to the enforceability of that agreement. If enforceable, a post-marital agreement, has the same effect as a premarital agreement.
Premarital agreements and post marital agreements can among other things— 1) identify property brought into the marriage/domestic partnership; 2) how income and assets acquired during the marriage/domestic partnership will be characterized; 3) who has the legal right to control separate property. A premarital agreement and/or a post marital agreement can designate that certain property and income is to remain the separate property of one party and can avoid California community property laws in a California divorce. Further, these enforceable premarital and post marital agreements may have terms and conditions that address how debt will be divided, how real property acquired during marriage will be a divided and whether or not one spouse will be required to pay the other spouse spousal support upon the filing of a California divorce.
As stated above, there are certain requirements that must be met before a California premarital agreement is enforceable. Nathan James and SEIFER, MURKEN, DESPINA, JAMES and TEICHMAN, ALC are experienced lawyers who can assist you in the drafting and negotiating of an enforceable California premarital or post marital agreement. We have a wealth of experience . in these matters. Prenuptial agreements may also allow you to retain as your separate property any stock and/or stock options awarded to you as an employee benefit as well as any contributions you make to any pension plan, 401(k) plan and other retirement vehicle.
You will receive knowledgeable and competent legal representation with regard to enforceable California . premarital and post-marital agreements. Our experience in forming corporations and other business entities, as well as our extensive tax and estate planning experience assist our attorneys in the drafting and negotiating premarital and post-marital agreements that will protect our client’s rights while the same time being sensitive to the negative “vibes” raising the need for a premarital agreement or post-marital agreement may cause.