Enforceable Marital Agreements – In California, Marital Agreements allow couples an important opportunity to dictate their property rights and legal obligations to each other once married in ways that differ from what is otherwise provided under California’s Community Property Law and Family Law.  They should be reviewed if the couple moves to another state. 

Marital Agreements can either be entered into before the couple gets married (Pre-Marital Agreements) or after they are married (Post-Marital Agreements).  Marital Agreements take effect at death or divorce, as relevant.   

Pre-Marital and Post-Marital Agreements are both contracts and as such must meet certain requirements under the Law of Contracts:  They must be entered into voluntarily and without fraud, duress or coercion.  A Post-Marital Agreement must also meet higher standards. 

As Pre-Marital agreements are executed prior to marriage the parties to the agreement do not yet owe each other a so-called “Fiduciary Duty”, one that requires them each to act “in the highest good faith and fair dealing” with respect to their dealings with each other.   Accordingly, under the Fiduciary Duty rule, a Post Marital Agreement that results in an unfair advantage to one spouse is presumed to be the result of undue influence and thus void.

Premarital agreements can, for example, be used to confirm one’s property rights in each person’s separate property and prevent the Community Estate (which belongs equally to both spouses) from gaining an interest in one spouse’s own separate property (either from before marriage or subsequently acquired inheritances), which otherwise could happen during the marriage when marital earnings or either spouse’s labor (time and effort) is used to benefit the owning spouse’s separate property.

Post Marital agreements can occur in the context of a marital reconciliation or as part of a marital separation.  They can involve the transmutation (change) in character of property rights and can affect estate planning purposes in a blended family when each spouse has their own children.

Since 2002 in California, marital agreements can also go beyond Community Property law issues and also address the issue of Spousal Support (e.g., alimony). 

To be enforceable Marital Agreements must, unless a valid waiver is obtained in context of a Pre-Marital Agreement, provide for full and fair disclosure of each party’s assets, income and liabilities; must provide 7 days for each side to review the agreement; and much involve separate legal counsel representing each party.  Full and fair disclosure can be difficult to achieve when asset valuations of hard to value assets are involved.  Nonetheless, full and fair disclosure is essential to the enforceability of the agreement. 

In addition, where Spousal Support is concerned, the agreement must not later be found by the divorce court to be unconscionable at the time of its enforcement.  What is unconscionable is not yet well defined under California law. That said, the more reasonable and fair a Marital Agreement is on the issue of Spousal Support, the more likely it is to be enforced.  Thus, a provision limiting, but not waiving, Spousal Support is more likely to be enforced.

Marital Agreements have limits: They cannot violate certain important public policies.  Specifically, Marital Agreements cannot address child custody, child support, or religious upbringing; to cite some important public policies.

In conclusion, Marital Agreements cannot guarantee the intended results of the agreement.  They have a much higher likelihood of success when each side has something to gain and something to lose by abiding by the agreement.  The best approach is for both sides to be fair and reasonable to one another and for each side to have their own legal counsel in negotiating the agreement.

“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”