THE DO’S AND DON’T’S OF PREMARITAL AGREEMENTS

A "premarital" or "antenuptial" agreement is a contract executed between prospective spouses in contemplation of marriage. The purpose of the agreement is to fix marital property rights and financial responsibilities upon consummation of the marriage. While some people would argue that such an agreement is a bad thing for a marriage, these agreements are typically intended to foster or perpetuate conditions which will help preserve a forthcoming marriage. The attitude of the courts towards these agreements is that if they are freely entered into by the parties and do not violate public policy, they are favored.

So, what would be a violation of public policy? How about an agreement that fixes or waives child support. These type of agreements are typically invalid because parents are obligated by law to support their children.

Another problem can arise where the agreement seeks to waive the mutual duty of support owed between spouses while they are married and living together. Thus, it is one thing to fix property rights at the time of marriage, and it is another to try to cut off the duty of support owed by spouses to each other during the marriage. That is usually why I recommend a provisions which establishes a joint account that is used to pay community expenses.

The biggest problem usually arises when the agreement seeks to waive post-dissolution spousal support. If the parties wish to include such a clause, they might very well be inviting future litigation, and lots of it, on the issue of whether such a clause is enforceable. If you use the pre-marital agreement for the intended purpose of agreeing that the earnings and accumulations of each party during marriage will remain that party's separate property, free of any claims, community property or otherwise, of the other party, these types of agreements can be very beneficial.

For questions about premarital agreements and for your other family law needs, please contact the Law Offices of Richard A. Marcus (661) 257-8877.