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Pre- and Postnuptials


Pre and Postnuptials

A premarital agreement, sometimes also called an antenuptial or prenuptial, agreement, is a written agreement between two people prior to marriage as to what their property and possibly support rights will be when their marriage ends. The first thing you must understand about these agreements is that they are very important, very powerful, and unless overturned, will control the distribution of property when the marriage ends. Court cases have held that “Antenuptial agreements, if they contain certain essential elements, are favored by the courts,” and although premarital agreements are more carefully scrutinized than commercial transactions, California courts recognize the Uniform Premarital Agreement Act’s (Fam. Code §1600, et seq.) policy of encouraging these agreements and promoting predictability.

The next thing to be aware of is that all marriages must end, as a matter of law. If they do not end by an annulment or divorce, they end by the death of one of the spouses. Whether a premarital agreement is appropriate for the parties depends upon their circumstances and the purposes that the agreement is to serve.

With the exception of matters relating to children of the marriage, these agreements may cover almost the entire gamut of the parties’ financial relationship. “By careful premarital planning and a willingness to mix realism with romance, the bride and groom can protect their existing assets, assume responsibility for their existing debts, characterize after-acquired property, allocate income earned (actively and passively) during the marriage, address income tax issues that will arise during marriage and in the event of dissolution or death, and cover general testamentary issues as well as those that may exist if there are children from prior marriages.” (Quoted from superseded opinion in In re Marriage of Pendleton and Fireman (1998) 62 Adv.Cal.App.4th 751, 72 Cal.Rptr.2d 840.)