Premarital, Marital or Postnuptial, and Cohabitation Agreements

In the United States, premarital agreements found little support in the law until late in the 20th century. They were seen as antithetical to the true spirit of marriage, and courts were reluctant to recognize them, let alone enforce their provisions. Today, the “prenup” is recognized by every state, including California, which accepted the validity of such agreements in 1976. Enforcement, however, is not automatic. It depends on the circumstances of the parties and, most of all, on the document itself.

A premarital agreement is a contract and, like any contract, it must meet certain threshold requirements in order to be valid. In California, a premarital agreement may not be enforced if there was inadequate disclosure by either party, if the agreement was not entered into voluntarily, or if its terms were unconscionable or in violation of public policy.

A valid premarital agreement can do many things. It can determine the division of assets and debts, provide for spousal support, delineate rights in the event of a party’s death, and protect a party’s business interests.¬† Perhaps the most important advantage of the prenuptial agreement is its ability to make an advance determination of what constitutes community property and what constitutes separate property, a highly significant distinction under California law.

There are also some things a premarital agreement cannot do. It cannot provide for penalties for infidelity or drug use, or require that children have a certain religious upbringing. In fact, matters of child custody and support cannot be disposed of in advance by premarital agreement. There, because of the law’s focus on the best interest of the child, the court will always have the last word.

Once married, a couple can still enter into an agreement, a postnuptial or marital agreement that covers much of the same ground as its premarital counterpart.  Validity and enforceability issues are, if anything, even trickier, because the law treats married persons as business partners with fiduciary obligations to each other.

A couple does not have to be in a legal marriage to want to spell out certain rights and responsibilities should things fall apart, and the lack of a marriage certificate does not necessarily mean that things will be simpler or less painful should an unmarried couple separate. A cohabitation agreement, unromantic as it may be, can settle some issues in advance, although such agreements are not subject to the same formal framework that applies to marital agreements. That is all the more reason to follow many of the same guidelines that govern marital agreements, especially with respect to fairness and disclosure.

Representation by a family law attorney with experience in this area is recommended.

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