Although most people who get married do not imagine that their union will end in divorce, the reality is that some marriages will not work out. In these cases, having a premarital agreement can save the parties a significant amount of time, stress, and money that would otherwise be spent attempting to determine who will retain what assets. However, a premarital agreement will only be considered valid if it complies with specific requirements. To ensure that your premarital agreement is drafted correctly, it is important to retain an experienced family law attorney who can make sure that all of the legal requirements are fulfilled.
In California, premarital agreements must be in writing and signed by both parties in order to be considered valid. These agreements will only be enforceable, however, if the parties had the mental ability to consent to their terms. Further, consent cannot be the result of fraud or mistake, so even when an agreement is reduced to writing and is properly signed, it will not be enforceable if the party against whom enforcement is sought proves that he or she did not execute the agreement voluntarily, or that the agreement was unconscionable when it was signed, and that before it was executed he or she:
- Did not receive the other spouse’s complete financial information;
- Did not have at least seven days to review the agreement; and
- Was not represented by independent legal counsel (unless he or she expressly waived the right to representation).
Otherwise, a signed premarital agreement will become effective upon marriage and can only be changed or revoked if both parties agree to do so in a signed writing.
What Does a Prenuptial Agreement Contain?
Premarital agreements deal with both present and future property rights, but can cover a variety of topics, including:
- The parties’ rights and obligations to property, whether owned together or separately;
- The right to buy, sell, mortgage, lease, or manage certain assets;
- How property will be disposed of in the event of the occurrence or non-occurrence of an event, such as the dissolution of the marriage, the couple’s separation, or the death of one of the parties;
- The creation of a will or trust to carry out the agreement;
- How a life insurance policy should be disposed of in the event of the policyholder’s death; and
- Other personal rights and obligations.
However, a premarital agreement’s terms will not be enforceable if they:
- Adversely affect the rights of a child to receive financial support from one or both of the parties; or
- Interfere with a court’s ability to control child custody and visitation after a marriage has been dissolved,
Finally, if the premarital agreement affects the rights of one spouse to future spousal support, then he or she must be represented by an attorney.
Contact a Pleasanton Family Law Attorney Today
If you and your future spouse are considering creating a premarital agreement, please call the White Oak Law at (925) 271-0999 to set up a confidential meeting with an experienced family law attorney.