Giving You Answers About Premarital And Postmarital Agreements
Before you sign a prenuptial or postnuptial agreement, you should get more information from a knowledgeable marital law attorney at Nelson Kirkman. Our firm has served family law clients in Orange County since 1998, giving our team the considerable knowledge and experience necessary to answer your questions.
Are premarital agreements generally found to be valid?
Yes. Premarital agreements are generally found to be valid if the parties follow the rules laid out in the agreement.
Can premarital agreements be found unenforceable?
Yes, some premarital agreements may be found to be invalid and unenforceable. If the divorcing parties do not agree as to the validity of a premarital agreement, the court will rule on the matter. The court will consider factors such as the relationship of the parties when the agreement was made, undue influence placed on a party, and lack of disclosures.
Can a valid premarital agreement replace certain community property laws?
Yes, a valid premarital agreement will alter how certain community property laws impact the divorce of the parties. Such an agreement can cause what would ordinarily be community property to be treated as separate property.
Can a premarital agreement alter community property laws related to gifts?
Yes, premarital agreements can alter community property laws related to gifts. Valid gifts between spouses must meet certain specific legal requirements in California. For example, a vehicle cannot be characterized as a gift. There are few to no restrictions on gifts of items such as apparel and jewelry.
Do premarital agreements have different requirements than other contracts?
Yes, premarital agreements have special requirements. The premarital agreement must be “acknowledged” by the other party (IRMO Cleveland). There must be a full week between when the agreement is first presented and when the parties sign it. A premarital agreement that does not comply with these special requirements may be found to be invalid.
Can child custody and support issues be addressed in a premarital agreement?
No, a premarital agreement cannot stop the divorce court from making specific orders related to child custody and child support. The parties also cannot bind the court in matters of relocation or setting a standard to review child support.
Is a premarital agreement made during a first marriage valid for a second marriage between the same two parties?
No, a premarital agreement signed before the first marriage of two parties is not valid for the second marriage of the same parties (Barham v. Barham).
Can a failure to comply with a premarital agreement invalidate the agreement?
Yes, in some circumstances one party’s failure to perform the actions included in a premarital agreement will prevent them from enforcing the agreement on the other party (In re: Warner’s Estate).
Can the right of disclosure be waived by a party?
No, parties cannot waive the Preliminary Right of Disclosure, but are able to waive the Final Declaration of Disclosure. If this right is waived, both parties are still obligated to disclose all material information about community and separate property.
Can a premarital agreement promote divorce?
No, a premarital agreement will be found to be invalid if the court rules that it promotes divorce (IRMO Dajani). One party gaining a significant asset if a divorce occurs is not promotive of divorce on its face. For example, a court ruled that a premarital agreement featuring a $100,000 payment in case of divorce to be valid because that amount was equivalent to the spousal support the payee would have otherwise received (IRMO Bellio).
Can premarital agreements include provisions to penalize certain personal behaviors?
Premarital and postmarital agreements cannot validly penalize certain areas of behavior. Such agreements cannot include penalties for being sexually unfaithful (Diosdado v. Diosdado). They also cannot penalize a party for the use of illegal drugs (IRMO Mehren & Dargan).
Can premarital agreements limit or waive spousal support?
Yes, the law now allows parties to make agreements addressing spousal support in some circumstances, which was formerly prohibited by the court. Such a provision will be unenforceable if the court finds it to be unconscionable. The court may grant temporary spousal support as it determines the validity of such an agreement (Gromeeko v. Gromeeko).
Is a premarital agreement valid if not voluntarily signed?
No, a premarital agreement that is not executed in a completely voluntary manner without duress will not be found valid (IRMO Baltins and IRMO Bonds).
Will the court consider intent if a premarital agreement Is vague?
Yes, the court may interpret the intentions of the parties if a premarital agreement is found to be vague. The same concept is applied to a marital settlement agreement (IRMO Schu).
Can premarital agreements be attacked on their contractual terms?
Premarital and postmarital agreements are contracts and can be attacked on that basis. A premarital agreement that is not well-written or is vague may be misinterpreted or ruled invalid by the court. There are some differences between premarital agreements and normal contracts. For example, the fairness of a typical contract is judged at the time of the agreement, but the fairness of a premarital agreement on spousal support is judged at the time of divorce.
Talk To A Family Law Attorney About Premarital Agreements
Whether you are interested in getting a prenup or you are going through a divorce and need to enforce an existing one, Nelson Kirkman can assist you. You can ask us questions in person by calling our Newport Beach office at 949-430-6952. You can contact us online by sending an email.