Some Considerations and Pitfalls of Creating a Premarital Agreement
by M. Todd Ratay
California law currently recognizes three basic types of agreements involving marriage: Premarital Agreements, Marital Agreements, and Marital Settlement Agreements. As of January 1, 2005, these agreements are also applicable to lawful domestic partnerships. Marital agreements are executed by spouses during marriage and affect marital rights and obligations in an ongoing marriage. Marriage settlement agreements are executed to resolve the parties’ marital and property rights and obligations upon the dissolution of marriage. This article addresses some of the practical considerations involving premarital agreements, or “Pre-nups,” and what rights those agreements can and cannot afford.
Premarital Agreements are contracts executed between prospective spouses intended to be effective upon marriage. They are intended to allocate assets and income the parties either bring into the marriage or earn and acquire after marriage. Unlike marriage settlement agreements which define the parties’ rights upon dissolution, a premarital agreement is actually intended to promote or continue rights and conditions to help preserve a prospective marriage. They may deal with the parties’ present and future property rights, both before and after death, and other related matters, and are intended to avoid or alter the applicability of California’s community property laws. Thus, premarital agreements may provide that the earnings and property acquired by each spouse during marriage will remain that party’s separate property in the event the marriage fails.
What subjects can a premarital agreement cover? Subject to certain limitations, a valid premarital agreement can address and allocate the parties’ rights and obligations in any property of either or both parties, whether it was acquired before or during marriage. This includes real property, income and earnings, and other assets. It may govern the right to buy, sell, use, transfer, or lease property. The agreement may also establish or limit the right to mortgage, encumber, manage and control the property, and even the disposal of property upon separation, dissolution, or death. However, pre-marital agreements cannot modify or abridge a party’s statutory child support obligations. The courts will not enforce agreements which attempt to limit or remove one parent’s duty to support their children.
 The California Domestic Partner Rights and Responsibilities Act extends to registered domestic partnerships nearly all the rights, benefits, obligations and protections afforded spouses under California law both during and upon termination of the union. Therefore, the term “spouse” should be read in this article to encompass lawful “domestic partners” and “marriage” should be read to in a lawful domestic partnership.
Look for Part 2 of this article in our August issue.
M. Todd Ratay is an associate at Neil Dymott and concentrates his practice on the defense of healthcare professionals and general civil litigation defense. Mr. Ratay may be reached at (951) 303-3930 or email@example.com