Can You Have a Prenuptial Agreement in a Community Property State?
Every U.S. jurisdiction, both community-property and equitable-distribution states, allows prenuptial agreements. These agreements allow parties to decide how they will divide up their property in the event that they decide to end the marriage. Individual jurisdictions have their own rules for executing prenuptial agreements; parties considering creating these agreements should talk to a lawyer.
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Community-Property Law
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In community property states (CA, AZ, NV, TX, NM, WI, ID, LA, and WA), all property earned during the marriage is considered the joint property of both spouses, unless the spouses designate the property as separate property of one spouse or the other. Upon divorce, the spouses keep their separate property and split the community property evenly. Community property is a statutory default system, generally capable of alteration by contract.
Prenuptial Agreement
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A prenuptial agreement is a legal contract in which a couple stipulates exactly what will happen to their property when they dissolve the marriage. Spouses may also use prenuptial agreements to determine each spouse's right to financial support after dissolution, and to agree on mediation or other alternative proceedings to a typical divorce.
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Prenup Requirements
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State law determines the specific requirements for valid execution of a prenuptial agreement. However, most states' laws share common elements: both parties must sign the agreement, the agreement must be legally enforceable (meaning neither unfair to either party nor offensive to public policy), and neither party can have used any sort of threats, duress or undue infuence in compelling the other party to sign the contract. Some states have enacted a requirement that the party who gives up his or her rights in the agreement must have independent counsel.
Unwaivable Rights
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Community-property states have varying laws on the types of rights that a party may contract away via a prenup. Some states do not allow a party to give up his rights to post-divorce financial support. All states absolutely prohibit a party to a prenup from using the contract to relieve herself from child support obligations. Any contract provision that frees one spouse from supporting his children will be unenforceable before a court.
Second-Look Jurisdictions
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When deciding whether to enforce a prenuptial agreement, courts look to see whether, considering the circumstances under which the parties signed the contract, the contract was "fair" to both parties. Some community-property states, such as California, have passed laws that turn the state into a "second look" jurisdiction. These states' courts may also consider the circumstances between the parties at the moment the marriage dissolves in order to decide whether the contract is fair.
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- Photo Credit signing a contract image by William Berry from Fotolia.com
