Pre & Post Marital Agreements
Bring clarity to your commitments.
Marital agreements, also known as Prenuptial, Postnuptial, or Transmutation Agreements, can be valuable tools for couples looking to address the specific needs and circumstances of their marriage. There are many reasons couples seek out property agreements and these reasons are unique to each couple. Most often the underlying issue is defining property rights and obligations within the marriage. California public policy states that a marital agreement is void if it encourages or promotes dissolution. Phrased another way, valid marital agreements are designed to promote clarity within a marriage. It is a tool to strengthen and clarify marital goals and property agreements, not weaken or alienate the relationship. For couples contemplating the value of a premarital agreement, please consider the following items:
TIMING: Marital property agreements can be entered into either pre or post-marriage. It is possible for a couple to achieve the same goals with both documents. It is very important to consult with an attorney regardless of which agreement you are creating as the rules around each document are different and strict.For the partner seeking a property agreement prior to marriage, you should retain an attorney at least 90 days before the wedding. There are very strict rules concerning the execution of a pre-marital agreement. Recent changes in California law, require the party receiving the premarital agreement must have 7 days to review the final document before signing. It is critical that you retain an attorney with enough time to allow the full drafting process, financial disclosures, and waiting time to occur. If you contact an attorney with less than 90 days before the wedding, it is highly advisable that you proceed with a post-marital agreement instead.
It is inadvisable to you execute a premarital agreement the day before your wedding. Such a scenario opens the door to the receiving party challenging the validity of a premarital agreement should you ever need to enforce it. It is bad practice to sign and get married next day. The receiving party has the ability to claim that they signed the document under duress, believing that the marriage would not occur without signing the agreement. Please keep in mind that both parties need to have their signature notarized in addition to the attorneys signing. Depending upon everyone’s schedule, this may mean the attorneys and parties sign separately. This can have a significant impact upon the overall timing of the signing.
CONTENT: The main purpose of a marital property agreement is to modify each parties’ property rights as defined by the California Family Code. One benefit to consulting with an attorney regarding terms of a marital property agreement, is that your counsel can fully advise you on all of the default rules governing your marital property rights are under California law, and clarify the consequences to modifying your rights with the agreement. Your attorney can advise you regarding:
- Creating or waiving community property
- Your rights and responsibilities to your spouse during marriage
- Spousal support after dissolution
- Modifying the character of separate property
- Enumerating how the expenses of the marriage will be paid
- Choice of law provisions
- While you may not enter into any marital agreement terms relating to children, including child support, visitation, or custody, your attorney can still advise you regarding your rights and obligations under California law.
FINANCIAL DISCLOSURES: Marital property agreements, require both parties to disclose, analyze, and exchange financial information with each other before any agreement is signed. This ensures that you both know each other’s financial background when entering into this agreement. At Gomez Edwards Law Group, LLP, we emphasize the importance of completing your agreement with enough time for both parties to complete the financial disclosures.
Financial disclosures mean that both partners must include the identity of all assets that you have or may have an interest in, and all liabilities for which you are or may be liable, regardless of the characterization of the asset or liability as community property or separate property. If an asset is not fully owned, or an obligation is not fully owed, the percentage of ownership or obligation must be specified. To the greatest extent possible, both partners should attach supporting documentation where available.
For example, bank statements, mortgage statements, statements for retirement accounts, deferred compensation accounts, and insurance policies should all be included. Failure to make a full and complete disclosure can be grounds to set aside any agreement. This is a potentially serious consequence and therefore, whether you are seeking a prenuptial or postnuptial agreement, you should consider seeking legal representation so that your agreement incorporates all required legal language and procedures.
PROCESS: Often times the process of creating the marital agreement can involve difficult or uncomfortable conversations. The goal is to strengthen relationship; however, for some, the discussion of what happens in the event of a dissolution is a very uncomfortable conversation.
There are multiple ways that the creation of the agreement can occur. Parties may utilize multiple processes to reach a marital agreement. Parties may retain separate counsel to negotiate the agreement, or engage together through collaborative law or the use of a mediator to reach a final agreement.
If you use a mediator, it is important for both parties to have a separate and independent review with their own private counsel. A mediator’s job is not to inform you of your rights or to advocate for you, but merely to facilitate a mutually agreeable outcome. Many individuals take the stance that signing a premarital agreement is tantamount to guaranteeing your relationship will end in divorce.
Those of us at Gomez Edwards Law Group do not take that stance. In our experience, both with premarital agreements and dissolutions, many couples are not communicating about critical areas of their relationship, including finances, and thus enduring unnecessary stress. Consulting with an attorney regarding a premarital or post marital property agreement, is an excellent avenue to facilitate those difficult conversations, or conversations regarding topics partners often don’t think about discussing.
The marital agreement process is not inherently litigious; it is rather a space for couples to come together and create their shared vision and plan for their future together. This is an excellent opportunity to work together to lay the foundations that will promote harmonious marital relationships through the clarification of rights, responsibilities and obligations to each other.
Have Questions Regarding A Family Issue? Contact Us Today.
Top family law attorneys Natalie Gomez and Lauren Edwards can help you build the strongest case possible, no matter how complex your family issue is. Both are experienced in successfully representing cases in the Santa Clara county legal system. They are open, objective and proactive when it comes to explaining everything to you each step of the way. As your lawyers, they will always follow your directives and wishes.
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