Pre-Marital Agreements

The use of pre-marital agreements (also known as "ante-nuptial" agreements) is becoming increasingly common, especially in situations involving children of prior marriages, and substantial assets acquired by either party prior to marriage. Without a pre-marital agreement, in the event of divorce, California’s community property laws will operate to divide in half all community property assets acquired by the parties during marriage. Except for gifts, inheritances, or income earned by either spouse and maintained exclusively in a separate, non-community property bank account, this will encompass all assets acquired during marriage. A well drafted pre-marital agreement will address all property issues, community and separate in the event of divorce.

It is highly recommended that both parties be represented by counsel in any pre-marital agreement negotiations. Generally speaking, to be enforceable, each party must fully disclose his or her assets, and income to the other party. A pre-marital agreement wherein only one spouse is represented by counsel will be subjected to stricter scrutiny for fairness than such an agreement wherein both parties are represented by counsel (Marriage of Bonds, 99 D.A.R. 3459, No. A075328 and A076586, filed April 12, 1999).

The law is currently in flux in connection with spousal support issues in pre-marital agreements. Under California’s revised Uniform Premarital Agreement Act (UPAA) (Family Code §1610, et. seq.), the old rule established in Pereira v. Pereira (1909), 156 Cal.1, 103 P. 488 that spousal support could not be waived in a pre-marital agreement was inherently called into question. Under the model UPPA, waivers of spousal support are expressly permitted; however, California did not include that provision in its version of the UPPA. Under the California UPPA, the parties are permitted to agree to any matter "not in violation of public policy or statute imposing a criminal penalty." (Family Code §1612(7)). Whether a waiver of spousal support is permissible will be decided, in part by the California Supreme Court in Marriage of Pendleton & Fireman (1998) 62 Cal. App. 4th 751, 72 Cal. Rptr. 2d 840, cert. granted, 1998 Cal. LEXIS 3879.


Copyright © 1999 Roy A. Barry, all rights reserved.