A prenuptial agreement is an agreement between prospective spouses made in contemplation of marriage. Most frequently, California prenuptial agreements are used to alter property rights that would otherwise accrue under California's community property laws after the parties are married; it is a means by which the parties themselves, by agreement, seek to modify the laws and rules that would otherwise apply to them in the event of a divorce.
Purposes
A prenuptial agreement may be used to preclude the creation of community property interests in property; or to assure that the separate property of one or both of the spouses owned before marriage remains separate property after marriage, regardless of events or acts that might otherwise result in creating a community property interest. Additional purposes can to be spell out the parties' respective property rights in order to avoid the cost of disagreement and litigation over such rights in a possible eventual divorce proceeding; to allow the parties to plan for the death of one or both of the parties; and to protect the property of one of the spouses from the creditors of the other in relation to debts incurred prior to or during the marriage.
Spousal Support Waivers and Limitations
Sometimes the parties wish to preclude or to limit the spousal support that might otherwise be awarded by a court in a marital dissolution proceeding. Any provision waiving, or even "about" spousal support, however, is subject to strict statutory requirements, without which the provision is unenforceable: 1) the party who would otherwise be entitled to spousal support must have been represented by independent counsel at the time the agreement containing the provision was made; and 2) the provision must not be "unconscionable" at the time of enforcement. "Unconscionable" is defined by applicable case law, and has to do with the concepts of unfairness and injustice, under the particular circumstances of the case.
California Cohabitation Agreements
A cohabitation agreement is an agreement between parties who plan to live together or are already living together in an intimate relationship other than a valid marriage or registered domestic partnership. A cohabitation agreement can be used to govern the parties' personal financial arrangements and/or the various business and property transactions contemplated to be entered into in the future. Unlike prenuptial, post-nuptial and marital settlement agreements, cohabitation agreements are governed solely by general contract principles and law, and the rules and laws applicable to the particular financial, business and property transactions involved. They can be used for a variety of purposes, including to keep property interests separate, to provide for joint property, to create a partnership, and even to provide for treatment of the parties' respective interests as though they were married.
A Word of Caution: DO NOT
California prenuptial, post-nuptial or post-marital, and cohabitation agreements are important legal documents and contracts, which bind the parties for years into the future. DO NOT attempt to enter into any such agreement as provided by an Internet service or other do-it-yourself legal forms provider. Such services and forms are notoriously unreliable; are not current with or do not even address California law; and are incapable of properly addressing the particular circumstances and desires of the parties involved.
If you are contemplating entering into a prenuptial agreement, a post-marital agreement, or a cohabitation agreement, contact the California Family Law offices of Virginia H. Gaburo & Associates to discuss whether you need such an agreement; and, if so, what it should contain.
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