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Do I need a prenuptial or postnuptial agreement?

Generally, prenuptial agreements are agreements entered into prior to marriage, to protect the separate property assets of parties to the marriage. In essence, the parties may contract outside the marital laws in the State of California, provided certain statutory requirements are met. Some of the reasons for entering into a pre-nuptial agreement include:

  • Marriage which is a second marriage and there are children from the previous marriage.
  • Marriages where the parties are older - parties may have significant assets they have acquired that they want to keep separate or want to keep their estate documents "as is."
  • Marriages in which one party wants to protect family wealth or a business from disputes on death or divorce.
  • Marriages in which one party wants to limit or eliminate spousal support.
  • Marriages in which two income families wish to protect separate assets.
  • Marriages in which the couple purchased a home before the wedding.
  • Marriages in which one party pays for the education of the other.
  • Marriages in which one party has substantial debt.
  • Marriages in which one party has a professional practice.

According to California Family Code Section 1612(a), parties to a prenuptial agreement may contract with respect to all of the following:

  • The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
  • The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
  • The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
  • The making of a will, trust, or other agreement to carry out the provisions of the agreement.
  • The ownership rights in and disposition of the death benefit from a life insurance policy.
  • The choice of law governing the construction of the agreement.

Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

 

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