California's Prenup Laws
In a prenuptial or premarital agreement, two parties planning to marry decide in advance what will happen to their money, real and personal property, and other assets in the event that the marriage dissolves. Prenuptial agreements in California are governed by several sections of the California Family Code, known collectively as the California Premarital Agreement Act. Those with legal questions about a specific prenuptial agreement should consult an attorney.
Other People Are Reading
-
Community Property Considerations
-
In a typical California divorce, division of assets will follow the rules of community property. In community property states, the spouses each keep their own separate property, including any property each owned before the marriage or received as an individual gift during the marriage. But any assets earned by either during the marriage are considered community property, which is theoretically divided evenly between the two spouses.
Premarital Agreement Effects
-
California Family Code Sections 1610 through 1617 -- the "California Premarital Agreement Act" of 1985 -- allows parties planning to marry to create premarital agreements that alter the normal community property disposition, but stipulates that these agreements only become effective upon marriage. Therefore, if parties create a premarital agreement but the marriage never takes place, the premarital agreement will not control either party's property. However, under Section 1616, if a marriage takes place but is later determined to be invalid, courts may enforce the agreement as necessary to prevent injustice.
-
Contract Formalities
-
The CPAA demands that any premarital agreement be written and signed by each party. Likewise, any change to the agreement after its execution must also be written and signed. Premarital contracts are bound by all of the prohibitions governing any contract under California contract law, including prohibitions on fraud, duress, threats exerted to induce a party to agree or any other unlawful activity. Both parties must execute the premarital contract voluntarily; the CPAA spells out specific requirements for voluntary execution in Section 1615.
Valid Contracts
-
Section 1612 allows the contract to control almost any sort of property the parties may possess, but courts have refused to enforce certain contracts as public policy problems. For instance, courts will not enforce a premarital contract that offers a financial incentive for one party to seek a divorce. Courts also will not allow parties to contract out of legally required child support payments.
Spousal Support Rights
-
Section 1612 was amended in 2001. After this date, should one party give up spousal support or alimony rights via the contract, Section 1612 demands that that party have had his own legal representation during the process of reviewing the contract. With the 2001 amendment, such spousal support provisions also receive a second look, meaning that even if the provision was fair to both parties at the time the contract was signed, a court has the right to decide at the time of divorce that the provision is no longer fair and refuse to enforce it.
-
References
- Photo Credit ring image by Jens Klingebiel from Fotolia.com
