Prenuptial and Postnuptial Agreements: A Divorce Lawyer's Discussion

Prenuptial Agreements

A premarital agreement is an agreement between prospective spouses, before they are married, to be effective upon marriage. Prenuptial or premarital agreements may deal with the parties' present and future property rights, both while living (inter vivos) and after death (post mortem), and other matters incidental to the marital relationship, including the setting or waiving of spousal support. Premarital agreements executed on or before January 1, 1986 are subject to the Uniform Premarital Agreement Act (adopted by California at Fam. Code sections 1600 et seq.). Premarital agreements subject to the UPAA, are valid and enforceable in California if they are in writing and signed by both parties and are not the product of coercion or duress. No consideration (quid pro quo) is required to make the premarital agreement enforceable; for premarital agreements executed before January 1, 1986, consideration is required to make the agreement enforceable.

Postnuptial Agreements

Marital or postnuptial agreements, are agreements made between spouses after they are legally married which attempt to affect marital rights and obligations incidental to marriage. Such agreements can properly include “transmutation” agreements (agreements attempting to alter the characterization of property, i.e., separate or community property, or whether, if one spouse's separate property, making it the other spouse's separate property). Whether or not such agreements are valid depends upon whether the parties complied with the applicable statutes (e.g., Fam. Code section 852(a)) and whether they complied with rules controlling the fiduciary obligations between spouses (Fam. Code sections 721(b) and 1100(e)).

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