The prenuptial agreement is a legal device designed to remove some of the concerns and liabilities foisted upon a married couple. A properly crafted prenup can solve disagreements before they happen, whether involving personal business involvement, individually held real estate and property, credit hangups and debt, the disposition of finances, or any monetary arrangements left over from life before marriage. It’s also a useful tool for post-marriage arrangements, in cases of both separation and an unfortunate passing. Support payments, property rights, allowances and inheritances can all be sorted out in advance, to the satisfaction of both parties.

No one enters into a marriage expecting it to end. That said, over 50 percent of all couples eventually separate. You can ensure future security for yourself and those you care about.

The functional objectives of a prenuptial agreement can include the following:

  • Limitations on spousal support (SS) in the event the marriage is eventually dissolved: do you want to support your spouse after a divorce?
  • Generate and enable specific property rights, including limitations on the creation of community property (CP) during the marriage.
  • Establish the preservation of separate property (SP) during the marriage, items which the individual owned beforehand: protect your home and interests.
  • Define the values of specific items of separate property, such as stock market investments and cars.
  • Render your income separate property.
  • In the event one of the spouses contests the agreement, declare who will pay the attorney fees, and who is responsible for court costs.
  • You can also define which state’s laws will apply if the premarital agreement is challenged.

 

An advanced definition of the prenup

A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into by two people prior to marriage or civil union. The content of a prenuptial agreement can vary widely, but commonly includes provisions for the division of property should the couple divorce and any rights to spousal support during or after the dissolution of marriage, and contain promises, representations, and disclosures regarding details of the couple at hand.

The terms ‘prenuptial agreement,’ ‘antenuptial agreement,’ and ‘premarital agreement,’ suggest the same thing: An agreement made by husband and wife before marriage, which would affect their property rights. It may affect their income during the marriage as separate or community. A premarital agreement may protect a spouse from paying spousal support or alimony after the marriage. Before getting married, people may waive, or give up their right to be supported by their spouse.

Commonly heard phrases indicating agreement and compromise between spouses:

  • Prenuptial Agreement
  • Antenuptial Agreement
  • Marital Agreement
  • Post-Marital Agreement
  • Marital Settlement Agreement
  • Stipulation to Judgment

Very often, people who have substantial property or income will want to protect it from the high rate of divorce. They may receive large gifts or an inheritance before or during the marriage that they wish to keep as their separate property. Our California Supreme Court stated it to be their policy that these agreements are to be enforced as promoting marriage in a world of marital uncertainty.

Rooted in California Family Code Section 1600, The Uniform Premarital Agreement Act enables the legal functionality of a prenuptial agreement in the state of California. As recently as early 2007, the appellate court noted the reliability of a premarital agreement in the case of Ackerman, where a value was fixed on the separate property nature of the husband’s medical practice.

Recent California Supreme Court cases, such as Bonds v. Bonds and Pendleton v. Fireman, made clear the intent of the court to uphold these agreements and thereby promote marriage. In Bonds v. Bonds (involving Barry Bonds, of the San Francisco Giants), the court saw fit to uphold the couple’s prenuptial agreement despite the fact it had been poorly crafted, written sloppily and signed under suspicious circumstances. During Pendleton v. Fireman, despite a large quantity of money being in flux, the court upheld the prenuptial agreement’s stipulation for both parties to waive their right to alimony.