Marriages are generally regarded as times of celebration and optimism toward the future. Why spoil these good feelings with the suggestion that the couple execute a premarital agreement? Don’t such agreements deal with the consequences of divorce, not marriage? And don’t prenuptial agreements, by their very nature, conflict with the emotions that have led to the decision to marry? While the answers to the last two questions may seem like a “yes,” premarital agreements can promote marital stability and happiness by eliminating questions about the division of property in the event of a divorce.
The requirements for a binding premarital agreement in California shed light on how this goal can be achieved. First, the agreement must be in writing and signed by both parties before the wedding takes place. Second, both parties must make complete financial disclosure to the other party at least seven days before the agreement is signed. Both parties should have the agreement reviewed by their own attorney, and each must sign the agreement voluntarily. A showing of duress by one party can invalidate the agreement.
Prenuptial agreements can cover a wide variety of subjects, including division of real property, personal property, and payment of spousal support. These agreements will be enforced if they do not violate state law or public policy. Prenuptial agreements cannot be used to reduce or eliminate child support; any clause that tries to achieve this end will likely be declared unenforceable.
Prenuptial agreements are most useful for couples who are marrying for a second time and who have significant assets. A prenuptial agreement can resolve potential disputes about dividing such assets and thereby eliminate a potential dispute later in the marriage. The advice of an experienced divorce attorney can be very helpful in evaluating a premarital agreement.