Talking about money before or during a marriage is not always easy. But a marital agreement is not about planning for divorce. It is about being honest and clear with each other. Here is an overview of the two main types of marital agreements in California.
What is a marital agreement?
A marital agreement is a written contract between spouses, or soon-to-be spouses, about property, debts and sometimes support. Without one, California's community property rules decide how property is treated if the marriage ends or a spouse dies. An agreement lets you set some of your own rules instead, within the limits of the law.
There are two main kinds:
- A prenuptial agreement ("prenup") is signed before the wedding.
- A postnuptial agreement ("postnup") is signed after the wedding.
Prenuptial agreements
A prenup can say what property stays separate, how property gained during the marriage will be handled, and who is responsible for which debts. It can also address spousal support, but only under strict rules.
California has detailed requirements for prenups, including timing rules and rules about having your own lawyer. If they are not followed, a court may refuse to enforce part or all of the agreement. Learn more on our prenuptial agreements page.
Postnuptial agreements
A postnup is signed after you are already married. Couples sign them for many reasons. One spouse may receive an inheritance or start a business. A couple may want to clarify finances after a hard time in the marriage. Or they may simply never have signed a prenup.
Postnups follow different rules than prenups. Once you are married, spouses owe each other special duties of good faith and fair dealing in money matters, a bit like business partners. If a postnup gives one spouse an advantage over the other, a court may presume it was the result of "undue influence," meaning unfair pressure. The spouse who benefits may then need to prove the agreement was signed freely, with full knowledge of the facts.
Changing a property's character, such as turning separate property into community property, also has its own writing requirements.
What makes an agreement hold up
Every case is different, but strong agreements usually share some features:
- Full and honest disclosure. Each person shares their income, property and debts.
- Enough time. Neither person is rushed into signing.
- Independent lawyers. Each person has their own lawyer to explain the agreement.
- Clear language. The agreement says exactly what it means.
- Fair terms. Terms that are extremely one-sided invite challenges.
Some things cannot be decided by a marital agreement. For example, parents cannot sign away a child's right to support.
Reviewing an agreement someone else drafted
If your partner has handed you an agreement, you should have your own lawyer review it before you sign. We can explain what it means in plain language, point out terms that may affect you, and suggest changes. If you are going through a divorce and already have an agreement, we can review whether and how it may apply. See our divorce page for more on the divorce process.
When to start
For a prenup, the best time to start is well before the wedding. Timing rules apply, and you will want room to share information and negotiate without pressure. For a postnup, the best time is usually when things are calm, not in the middle of a crisis. In either case, both people should go in with open eyes and honest numbers.
To prepare, gather a list of your property and debts, recent tax returns, and statements for bank, retirement and investment accounts. Think about what matters most to you, such as protecting a business, a home or savings for your children. You can learn about other family law topics on our family law overview.
Talk with a Whittier marital agreements lawyer
Steven Ibarra personally handles every case and offers same-day appointments in person or by video. We are available 24/7. Call (562) 612-7806 or contact us to schedule a consultation. Hablamos español.