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Pre- and Post-Nuptial Agreements
Prior to entering into marriage, a couple can enter into a written agreement which may take precedence over California law. It can govern the characterization of property, as well as earnings, during the marriage (what will be separate and what will be community), determine in advance whether there will be spousal support in the event of a divorce, or determine how much spousal support, if there is to be any. Although not altering the effect of California law, it is also good for both parties to inventory their property and debts going into the marriage so that, in the event of divorce, separate property claims can be traced. We do not necessarily recommend pre-marital agreements for young people who have few assets and no children. However, for those who have considerable assets and/or children, we do recommend that a pre-marital agreement be entered into, and it is quite customary and acceptable these days.
Post-Nuptial agreements are far more problematic than pre-marital agreements. Marriage itself is no longer consideration for the contract, and, as a married couple, there is a fiduciary duty between them which prevents either from taking any unfair advantage over the other. In short, in order for a post-marital agreement to be effective, there must either be adequate and equitable consideration going in both directions, or it must clearly, honestly, and without coercion or duress, be a pure GIFT from one to the other. For those reasons, it is rare that we recommend post-marital agreements, however there may be circumstances where they are appropriate.
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