Are You in Need of a Premarital Agreement?

Hossein Berenji, Aug 09, 2015

When contemplating marriage, couples often consider entering into an agreement or contract that divides assets upon a divorce. Whether you know it as a premarital agreement or a prenuptial agreement, the very thought of it can have one running for the hills. But are premarital agreements REALLY that bad?

When most couples discuss a premarital agreement, the partner that is being asked to sign one may become defensive, but premarital agreements can work out in everyone’s favor.

What could be seen as a divisive contract can become a reason for trust to exist. In fact, one in ten couples enter into some form of a premarital agreement before marriage so that their assets can be protected. If you have more questions about premarital agreements, call Hossein Berenji for a free case evaluation.

What is a Premarital Agreement?

According to California’s Family Code Section 1610, a premarital agreement is an agreement between prospective spouses and is effective upon marriage. A premarital agreement, unlike most other agreements, is enforceable even without consideration. However, like all other contracts, premarital agreements must be in writing and must be signed by both parties to be enforceable. A premarital agreement must be executed voluntarily as well as provide a fair, reasonable, and full disclosure of the property or financial obligations of the other party.

What Does a Premarital Agreement Do?

Premarital agreements are usually contracted between two people who are contemplating marriage. Though many may question the need for premarital agreements, some premarital agreements are necessary and can be valuable to an engaged couple because premarital agreements direct how property will be allocated amongst couples upon divorce and/or death.

Premarital agreements are generally enforceable as long as they do not violate public policy, but they are not applicable to child support or child custody matters. Though premarital agreements are enforceable, in the state of California, courts are generally not in favor of premarital agreements that promote a divorce.

California’s Family Code Section 1612 states that a couple can contract property whenever and wherever property is acquired or located. Couples have the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property. Prenuptial agreements address:

  • The disposition of property upon separation, marital dissolution, death, or some other event
  • The making of a will, trust, or other arrangement to carry out the provisions of the agreement
  • The ownership rights in and disposition of the death benefit from a life insurance policy
  • Personal rights and obligations that are not in violation of public policy.

The fact of the matter is, everything can be contracted for in a premarital agreement as long as public policies are not violated and it does not involve child custody or child support. Without a premarital agreement, California’s state laws will usually divide property equally upon divorce unless inequitable measures are determined at the court’s discretion which can be unfavorable to a party.

Need Legal Advice?

Premarital agreements can be of significant importance because they force couples to converse about their finances which ultimately may affect their family in later years. Consulting with an attorney about a premarital agreement can be invaluable and can protect your rights.

A person who is contemplating marriage should seek a Los Angeles divorce attorney at Berenji & Associates Divorce Lawyers today for a free case evaluation.  Speak to an attorney who has experience in drafting premarital agreements.