Premarital Agreements: Contracting Marital Rights and Obligations Prior to Marriage


California Family Code section 1612 provides that parties to a premarital agreement (PMA) may contract with respect to the rights and obligations in property, choice of law, spousal support, and virtually every other issue, other than those deemed contrary to public policy or law (i.e., child support).

Essentially, a PMA is nothing more than a written agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. Of course, enforcing a PMA is entirely another matter. Invariably, and no matter how well-written, a PMA will be challenged upon dissolution on grounds of unconscionably or failure to comply with statutory requirements. However, a thoughtful, well-crafted PMA can effectively protect property, define marital rights (i.e., the right to receive spousal support), limit litigation upon dissolution, and limit litigation upon death.

In order to understand the potential advantages of having a PMA, one must understand the California Family Code as it relates to certain rights the parties have during the marriage and upon separation. California is a community property state. Thus, all of the assets (and debts) acquired during the marriage that are acquired by way of the skill, labor, and effort of either party are community property and subject to equal division upon divorce. It does not matter if spouse "A" worked every day during the marriage and spouse "B" was a stay-home spouse. All of the assets, pensions, retirement accounts, real property, personal property, etc., that were created as a result of spouse "A's" employment is community property and subject to equal division upon divorce.

A PMA, however, can rebut the community property presumption and, in theory, provide that all of the assets acquired by one spouse during the marriage through that spouse's skill, labor, effort, etc., is separate property and NOT subject to division upon divorce. That being said, though, in order for a PMA to be enforced upon dissolution, the terms of the PMA must not be unconscionable. For instance, if a PMA spousal support provision gives no thought or consideration to the length of marriage, and instead simply bans spousal support in all situations, that PMA provision will be deemed unconscionable and will not likely be enforced.

Statutory Requirements

In addition to avoiding unconscionable terms, PMAs must also comply with statutory requirements as outlined in California Family Code section 1615. For instance, prior to entering a PMA, both parties must fully disclose all material assets and obligations. In addition, there is a statutory waiting period of at least seven days between the date the PMA is presented to the parties and the date they sign. Failure to comply with any of these and other statutory requirements will result in an unenforceable PMA. And while not statutorily required, don't even think of having your proposed spouse sign a PMA unless she is represented by legal counsel.

Tips on Ensuring Your PMA Survives Judicial Challenge

The most important aspect of ensuring the PMA's success is having a knowledgeable attorney prepare the agreement. In addition, consideration must be given to the following:

  1. Make certain that there is more than one draft (and retain copies of all drafts).
  2. Ensure that the weaker party made demands and that the stronger party acquiesced to some of these demands.
  3. Make sure that each page is initialed.
  4. Avoid unconscionably. If a PMA is so one-sided that it renders the impression that it is fundamentally unfair, the PMA will simply not be enforced.

A properly constructed PMA can provide certainty with regard to the rights and obligations of the parties upon dissolution. In addition to spousal support waivers, child custody issues, child visitation issues, and defining community property and separate property, a PMA can also establish civil procedure rights upon dissolution. The jurisprudence (legal decisions) surrounding PMAs have evolved greatly over the past four decades. Many of the appellate courts have provided additional insight and considerations as to what is required of a valid PMA. Accordingly, a summary PMA overview is insufficient to explain the many issues related to PMA construction. If you are considering a PMA in contemplation of marriage, please consult with a knowledgeable attorney who focuses on family law matters.

Our law office is located in Santa Clarita, serving communities in Saugus, Canyon Country, Valencia, Newhall, and more. If you have any questions regarding divorce, spousal support, child support, questions about modifying a child support order, or if you need assistance with a premarital agreement, please call family law attorney Eric Martinelli with the Martinelli Law Group for a free consultation.