Pre-Marital Agreements

The Purpose of a Pre-Marital Agreement

A Pre-Marital Agreement (also known as Pre-Nuptial Agreement) is a binding contract entered into between two people engaged to be married, in which the parties to the agreement intend to create a different set of property, debt, and spousal support rights and obligations than the legal relations they would have under the “default” California Family Law. Some Pre-Marital Agreements provide that property or retirement benefits acquired during marriage, which would otherwise have been marital/community property will instead be the separate property of the spouse or partner that acquired or earned it. Other Pre-Marital Agreements limit the spousal support rights of one or both parties. The purpose of each Pre-Marital Agreement varies with the goals of the parties entering into it. Sometimes a couple can get the result they want without an agreement, just by keeping pre-marital property segregated (not commingled with) property acquired during the marriage. For other couples, a Pre-Marital Agreement is necessary to obtain the property, debt and support relations they want.

Negotiated Using Consulting Attorneys

In this approach to negotiating a Pre-Marital Agreement, one of the parties retains Ms. Jansen as his or her consulting attorney and works with her to prepare an initial draft of the agreement. This draft is then sent it to the other party, who reviews it with another consulting attorney. The parties and attorneys may have face-to-face four-way meetings or the attorneys may confer, as spokespersons for their clients, by telephone, written correspondence, or email. Changes may be suggested by either party or attorney. The draft of the agreement is revised until it is fine-tuned to the mutual satisfaction of both parties. When the text of the agreement is finalized, the parties and their attorneys sign it.

Negotiated Using Mediation

In this approach to creating a Pre-Marital Agreement, the couple and Ms. Jansen meet together in mediation sessions to negotiate the initial rough draft of the agreement. Ms. Jansen acts as neutral facilitator and writes the draft, which both parties take to be reviewed and signed off on by separate consulting attorneys. The consulting attorneys may make suggestions for changes that the parties both agree on and Ms. Jansen will incorporate those into the final draft. When the text of the agreement is finalized, the parties and their consulting attorneys sign it.

First Marriage Pre-Marital Agreements

Particularly in a first marriage, a Pre-Marital Agreement is not to be entered into lightly or without obtaining several hours of legal advice. There is a risk that one or both parties may end up worse off under a Pre-Marital Agreement than he, she or they would have been under the “default” provisions of California Family Law. Ms. Jansen takes the time to inquire what her clients think the “default” law would do in their case and why a deviation is desired. She ascertains what are the concerns and objectives of her clients, counsels them on how they would be treated under the “default” law, and advises them on what alternative treatment may be achieved by a Pre-Marital Agreement. Ms. Jansen supports the creation of fair and balanced Pre-Marital Agreements. She reserves the right to decline to draft or execute an agreement which appears to lack reasonably balanced mutual consideration. She will confer with her clients to assure that they are acting voluntarily and intelligently, free from undue influence or coercion.

Second Marriage Pre-Marital Agreements

People entering into a second marriage may wish to draw up a Pre-Marital Agreement to create an arrangement which clearly preserves the separate property which each party brings into the marriage. A Pre-Marital Agreement is often coupled with an estate plan in which each party’s assets will ultimately go to their respective adult children. A Premarital Agreement may include provisions for how to pay for the future care of an aging spouse while protecting each spouse’s pre-marital separate property and separate income from being transmuted to community property. The goal of a Pre-Marital Agreement in second marriages is for each party to plan ahead, at the beginning of the marriage, to take care of herself or himself, take care of each other and take care of heirs, all in the context of a mutually respectful, honorable, and committed new relationship.

Comparing the Effect of Having No Agreement

For people getting married for the first or second time, a Pre-Marital Agreement may or may not be a good idea. Before assuming that a Pre-Marital Agreement is better than going along with the “default” result of the California Family Law, each party should obtain legal counsel.

Time Frames for Negotiating a Pre-Marital Agreement

California Family Law requires a Pre-Marital Agreement to be negotiated a reasonable time prior to marriage, giving each party an opportunity to obtain legal counsel without being unduly pressured by an imminent wedding date. If there is insufficient time to negotiate and execute a Pre-Marital Agreement, another option is to negotiate and execute a Post-Nuptial Agreement after the wedding.