Prenuptial & Postnuptial Agreements

What the agreement can settle

Premarital agreements commonly address the characterisation of property, the treatment of income earned during marriage, business interests, and spousal support. They cannot determine child support or child custody.

The procedural requirements

California requires that the agreement be in writing and signed, that there be full and fair disclosure of assets and obligations, and that each party have the opportunity to consult independent counsel. A party not represented by their own lawyer must be advised in writing of the terms being given up.

The seven-day rule

A premarital agreement is not enforceable unless the party against whom enforcement is sought had at least seven calendar days between first receiving the agreement and signing it. Agreements signed close to a wedding date are vulnerable.

Spousal support waivers

A waiver of spousal support is unenforceable if the party was not represented by independent counsel when it was signed, and may still be set aside if it is unconscionable at the time of enforcement.

Postmarital agreements

Agreements made during marriage are held to a higher standard, because spouses owe each other a fiduciary duty. Disclosure and fairness are examined more closely than in a premarital agreement.