Pre-Nuptial & Post Nuptial Agreements
Carlsbad Family Law Attorneys

At Zonder Family Law, we assist you in the creation of pre-nup agreements or simply reviewing a pre-nup or post-nup agreement, before or after divorce or death.

Pre-NUPTIALS or Premarital Agreements

Premarital agreements are written agreements entered into before marriage in which parties attempt to “fix” their rights upon divorce or death.  Not sure if you want to have a premarital agreement?  Take a look at a few advantages and disadvantages below.

Advantages to Entering into a Premarital Agreement:

1. A premarital agreement can preserve your income as separate rather than community property.  Since California is a community property state, each party’s income from earnings during marriage would be characterized as community property. If each spouse is self-supporting, you may wish to protect your separate income, so that it is not considered community property.
2. An agreement can protect you from your intended spouse’s debts.  Perhaps your fiancée’ was previously married or owned a business or is riddled with debt.  Without a premarital agreement, creditors may be able to satisfy that debt using your community property income. It is possible that your financial partnership with your intended spouse exposes you to his or her debt. A premarital agreement may help to avoid or minimize your liability.
3. A premarital agreement can protect your children.  If you have a child or children from a previous marriage, you may want to make certain provisions for those children, e.g., interest in the real estate that you own. By using a premarital agreement, you can preserve your separate income, so that your children inherit the income, or you can provide that certain property will remain your separate property, so that your children can inherit the property in exchange for a life estate to your new spouse or an agreed upon amount of support or property.  If this is not your first marriage, it is even more important to document financial arrangements for children from earlier marriages.
4. A premarital agreement can specify the division of property in the event you end up in divorce.  Absent a premarital agreement, state law will control how your property is divided in the event of divorce.  The law may dictate an undesired result. You can determine which property remains separate and whether you wish to create any community property or joint bank accounts.  You can attach schedules to your premarital agreement itemizing any existing property and your proposed division.
5. You can set out a “road map” to how your finances will be handled. The premarital agreement is often used as a road map for couples to do the following:

• Decide whether to have separate or joint bank accounts;
• Specify who will be responsible for paying the mortgage on a home;
• Set forth whether parties will file separate or joint tax returns;
• Specify that future businesses that are opened will be funded from either separate or joint funds;
• Specify that the other spouse’s separate property debts will be paid for using that spouse’s separate funds;
• Can include agreements regarding financing the other spouse’s education or business efforts

Limitations or Disadvantages of Premarital Agreements:

1. Premarital agreements may be limited by state law.  By way of example, you cannot (a) restrict custody and visitation rights (b) limit child support and (c) promote divorce.
2. Any attempt to include provisions for non-financial matters, such as custody and parenting plans or division of household responsibilities may be unenforceable.

Post-NUPTIALS or post marital Agreements           

To be valid in California, a post-nuptial agreement or post-marital agreement must be in writing, voluntarily signed by both parties and accompanied by a full disclosure of all assets, income, and debt of both parties.  Both husband and wife must have legal advice before signing and be provided sufficient opportunity to consider the terms of the agreement before signing.

In addition, Zonder Family Law can work and coordinate with your estate planning attorney if you wish to waive inheritance rights and mirror the provisions set forth in your estate planning documents (will or living trust) to ensure that you actually transfer your property as you intend.

Call us at 760-438-3383 or toll free at 866-632-6459 to schedule a consultation¹ with Lead Counsel, Lisa R. Zonder.

¹ Consultation granted based on appropriate qualification determined by Lead Counsel.