Premarital (Prenuptial) Agreement
A Premarital Agreement is an agreement between future spouses that is made in contemplation of marriage and is made effective upon marriage. A Premarital Agreement is typically used to change property rights that would otherwise accumulate under California community property during marriage. Property can be an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings. Therefore, the parties can create their own system for characterizing marital property and thereby avoid complex apportionment problems that could arise under the community property system should the parties ever separate.
A Premarital Agreement can alter the rules by which a community interest would be created in a spouse's separate property. For example, if you own a home pre-marriage and you decide to keep it in your name alone during marriage, a community interest will nevertheless develop during the marriage under the default California community property laws if community funds (meaning any funds you earn after marriage) are used to pay the mortgage principal or any improvements to the property. A Premarital Agreement can eradicate the community property interest that would otherwise result from such payments.
A Premarital Agreement also allows parties to provide certain provisions in the event of death. Parties generally feel differently about economic provisions for the other spouse in the event of death than in the event of dissolution. Couples who have children from previous marriages are usually especially concerned with estate planning and assuring that property is set aside for the children from the prior marriage that might otherwise default to a spouse upon their death.
Postmarital (Postnuptial) Agreement
A Postmarital Agreement is not all that unlike a Premarital Agreement, except that a Postmarital Agreement between spouses is entered into after the date of marriage (but before separation). Such an agreement allows spouses to decide their own separate and marital rights and obligations—during marriage, divorce, and at death. Should there not be any type of marital agreement whatsoever, in the event of divorce, any property interests will be subject to California community property laws.
Fyfe Law Firm will provide you with peace of mind by working with you to set up a Prenuptial or Postnuptial Agreement. Feel free to contact us to learn about and start the process. Call us at (858) 412-7714.