Spousal Agreements
There Are Three Types of Spousal Agreements
Premarital Agreements
“Premarital Agreements,” also known as Antenuptial or Prenuptial Agreements, are executed between prospective spouses in contemplation of marriage and they become effective at the time of marriage. They often deal with the parties’ present and future property rights and other legal aspects of the marital relationship.
For Premarital Agreements to be enforceable, the parties must follow the requirements set out in the Uniform Premarital Agreement Act found in California’s Family Code. If the parties do not follow these requirements, then they will not be able to determine how property is characterized and divided upon death or divorce, or how the law will dictate their financial obligations toward each other, creditors, or tax authorities.
A Premarital Agreement often include provisions covering the following subjects:
- Altering separate property and community property characterization;
- Defining limitations on the usage of property and the disposition of property upon separation, dissolution, death, or other events;
- Eliminating surviving spouse inheritance rights;
- Waiving of post-divorce spousal support (with some enforceability concerns);
Marital Agreements
“Marital Agreements,” also known as Postnuptial Agreements, are executed by spouses during marriage and effect the parties’ rights and obligations relating to the ongoing marriage. Unlike Premarital Agreements, which have guidance for drafting and executing in the Family Code, the enforceability of Postnuptial Agreements is largely guided by the Court’s interpretation of spouses’ fiduciary duties toward each other. Prospective spouses do not have the fiduciary duties toward each other that married couples do. The fiduciary duty standard is very serious and, as a result, Postnuptial Agreements must be negotiated and drafted very carefully. Otherwise, the Court may find that one spouse has exerted undue influence over the other.
Often spouses enter into Marital Agreements during marriage to transmute property (convert community to separate, separate to community, or separate to separate), define each other’s rights and obligations as to the others’ separate property, take advantage of one spouse’s superior credit to obtain refinancing, take advantage of tax rules, protect the other from creditors, and other reasons.
Marital Settlement Agreements
Marital Settlement Agreements (“MSAs”) are executed by spouses to finalize a divorce or legal separation. The parties untangle their marital relationship, including resolving marital property and other rights and obligations related to the divorce. MSAs then become a part of the final Judgment. MSAs are often negotiated following one spouse’s filing of the Petition for Dissolution of Marriage or Legal Separation, and may be signed very early on in the proceedings following amicable negotiations, or after years of highly contested court proceedings
MSAs usually include provisions for:
- Characterizing Assets & Debts;
- Dividing Assets & Debts;
- Confirming Reimbursements and Credits;
- Spousal Support;
- Child Custody & Visitation;
- Child Support; and
- Attorney’s Fees and Costs.
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