Postnuptual Agreement

POSTNUPTIAL & PRENUPTIAL AGREEMENTS SAN DIEGO

POSTNUPTIAL AGREEMENT LAWYER SAN DIEGO


Postnuptial agreements are subject to the general rules governing the actions of persons standing in a “confidential relationship,” spouses in an ongoing marriage may enter into any transaction or agreement with each other as they might if unmarried. [Fam.C. § 721(a) & (b)] So long as the subject is “lawful,” spouses may make enforceable marital agreements for a variety of reasons. Often, the objectives are similar to those of parties to a premarital agreement.

A common purpose of marital agreements is to modify or prevent the application of California community property law to all or some portion of the spouses’ property or income (Fam.C. § 1500) or to change the character of their property from community property to separate property or vice versa (“transmutation” agreements, Fam.C. § 850 et seq.; and see Balkema v. Deiches (1949) 90 CA2d 427, 430, 202 P2d 1068, 1069-1070;Tompkins v. Bishop (1949) 94 CA2d 546, 550, 211 P2d 14, 16).

OTHER PURPOSES OF A POSTNUPTIAL AGREEMENT

A related purpose of postnuptial agreements is to preserve the estate of a spouse intact for his or her heirs and free from succession claims of the surviving spouse. [Prob.C. §§ 140-147, ; see, e.g., Tompkins v. Bishop, supra, 94 CA2d at 550, 211 P2d at 16—spouse’s marital contract waiver of all property and inheritance rights in other spouse’s estate held controlling in quiet title action between waiving spouse and children of predeceased spouse by former marriage]

PRENUPTIAL AGREEMENT LAWYER SAN DIEGO


Preliminary Considerations: A “premarital” (or “antenuptial”) aka prenuptial agreements are contracts executed between prospective spouses in contemplation of marriage, fixing marital property rights and financial responsibilities upon consummation of the marriage. Or, in the context of a domestic partnership, it is a contract executed between the parties in contemplation of registering their partnership with the State, fixing their property rights and responsibilities upon the registration.

MOTIVATION BEHIND PRENUPTIAL AGREEMENTS

The motivation in executing a prenuptial agreement is ordinarily the opposite of the motivation behind a marital settlement agreement: Whereas a marital settlement agreement is generally intended to define the parties’ rights upon an impending termination of their marriage “which is admittedly in a state of decay,” a premarital (or antenuptial) agreement is typically intended to foster or perpetuate conditions that will help preserve a forthcoming marriage. [Estate of Butler (1988) 205 CA3d 311, 314-315, 252 CR 210, 211; see also Marriage of Pendleton & Fireman (2000) 24 C4th 39, 53, 99 CR2d 278, 288—“availability of an enforceable premarital agreement may in fact encourage rather than discourage marriage” (internal quotes omitted)]

Premarital agreements executed on or after January 1, 1986 are subject to the Uniform Premarital Agreement Act (UPAA, Fam.C. § 1600 et seq.). Prior law continues to govern the enforceability of certain oral post-1985 premarital agreements but is otherwise inapplicable to the extent it conflicts with the Act. [Fam.C. § 1601]

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