I wanted to briefly overview the common provisions often found in premarital agreements.
A “premarital agreement” is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. A premarital agreement shall be in writing and signed by both parties voluntarily and not under duress, fraud or undue influence.
Common Provisions. A premarital agreement is designed to protect the rights of each party. Some common provisions are:
- Provisions precluding the creation of community property. A premarital agreement may be used to preclude the creation of community property interests, either entirely or with specified exceptions.
E.g., under a general agreement designed to preclude the creation of community property, each party’s earnings during marriage and before separation, and the value of their efforts during marriage, and any items acquired by the party with those earnings, can be his or her separate property. It can strengthen such a provision to designate one joint account as the only place where community funds will be kept—i.e. by funding any money into such an account, it becomes community property.
Another common provision is that any debt or asset acquired in one spouse’s name is the separate property of that spouse.
- Provisions to maintain the character of separate property. A premarital agreement may be used to ensure that a spouse’s separate property owned before marriage remains separate after marriage, regardless of any developments (e.g., any increase in value attributable to community payments or effort) that might otherwise result in a community interest in the property.
You may wish to have a provision that states that no community interest in a spouse’s separate property, and no right of reimbursement to the community or to a spouse, may be created unless it is created in a writing, and that absent a writing any contribution of time, money or effort to the benefit of a spouse’s separate property is deemed a gift.
- Provisions to waive or limit spousal support. Prospective spouses can enter into provisions waiving or modifying spousal support rights subject to the following restrictions.
Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.
- Provisions for transmuting the character of existing property. By means of a premarital agreement, parties also may contract to transmute the character of property from
Community property to separate property; Separate property of one or both parties to community property; or Separate property of one party to the separate property of the other party.
At Divorce Helpline we are here to make the legal side of your marriage simple and clear and we offer prenuptial services. Check out our blog on the impact of prenuptial agreements, legal requirements, and what is enforceable.