Marital agreements such as pre and postnups are more popular than ever, with millennials being more likely to engage in a marital agreement than previous generations. But could a marital agreement actually help strengthen your union? Today, we’re answering that question.
For help with your marital agreement, contact our team online or via phone at (415) 805-9069.
What Can a Marital Agreement Do?
Prenuptial and postnuptial agreements can enable spouses to define what property is considered separate and what is considered marital throughout their marriage and in the event of a divorce. This is important in a community property state such as California, where marital property is distributed between parties equally post-divorce. Having a marital agreement can mean the difference between giving up half of your retirement account to your ex-spouse if you divorce, and having total control of those funds. A marital agreement can also help you avoid taking on liabilities accrued by your spouse should your marriage ever dissolve.
However, a marital agreement cannot be used to define terms for child custody and support. Matters concerning children must be decided at the time of a divorce, whether through a divorce agreement between the parties, or by the court in a trial.
The Requirements for Marital Agreements in California
To have a legally binding agreement in California:
- Both parties must have their own legal representatives throughout the agreement drafting and signing;
- Each party must have at least a week to review a potential agreement before signing;
- Both parties must be of sound mind and able to advocate for their best interests;
- Both parties must fully disclose their separate property, including assets and liabilities, to each other during the drafting stage;
- Both parties must sign the agreement;
- The agreement cannot be formed through coercion or under threats;
- The agreement cannot contain terms for child support or custody;
- The agreement cannot be unconscionably unfair to one party in the event of a divorce (for example, an agreement that would render one party homeless by forfeiting spousal support may be considered invalid);
- Neither party can lie to the other (commit fraud) by hiding or obscuring their separate property holdings during the drafting stage.
When a marital agreement comes into play, typically as part of a divorce, the court will evaluate it to assess its fairness. If the parties’ circumstances have changed significantly since the agreement was formed but the agreement does not reflect those changes, or one of the above guidelines is violated, the court may render the agreement invalid.
Can A Marital Agreement Strengthen My Marriage?
In a word: Yes!
Some people argue that signing a marital agreement is a sign that a couple predicts their marriage to end in divorce. In truth, none of us know what life holds in store for us. A marital agreement is simply a legally binding contract that ensures your marriage remains equitable throughout your union and in the event of a divorce.
Making preparations for the future is rarely a bad thing. Even if you don’t think you’ll ever divorce your spouse, having both parties lay all their cards on the table can help reinforce a couple’s commitment to their marriage. It’s better to learn about your soon-to-be-spouse’s credit card debt as part of drafting a prenup than it is to be saddled with half of it if you ever divorce.
At the end of the day, all a marital agreement truly does is encourage both parties to be fully honest with – and fair to – each other before tying the knot, and throughout their marriage. As a result, signing a marital agreement can indeed help strengthen your union.
At Fenchel Family Law PC, our team will help you draft a comprehensive, equitable marital agreement. Contact us online or via phone at (415) 805-9069 to learn more.