Prenuptial / Postnuptial Agreements

Serving Torrance, the Beach Cities and El Segundo

What is a prenuptial agreement?

A prenuptial agreement is for couples who are planning to marry. It is intended to be effective on marriage. Prenuptial agreements are usually created to maintain the character of separate property, limit or eliminate the creation of community property during the marriage, provide how debts will be paid during marriage, provide for estate planning, protect the property of one spouse from the creditors of the other spouse, transmute the character of property, and limit or waive spousal support if the marriage ends by divorce. A prenuptial agreement cannot promote divorce, require conformance with certain religious practices or other personal issues, and may not bind a Court regarding child custody or child support. Other terms used for prenuptial agreements are premarital and antenuptial agreements.

Both parties must have their own independent legal counsel. Both parties must make full and complete financial disclosures to each other. We suggest that the parties exchange three years of tax returns and provide each other with a recent credit report. A prenuptial agreement must be written sufficiently in advance of the wedding to not be considered to be negotiated in haste or under duress. It must be executed freely and voluntarily to be valid.

At Dean | Rosen LLP, we prefer to draft prenuptial agreements using a Collaborative Law model. The bride and groom with each of their counsel engage in a series of conferences to discuss and draft the agreement. Once the agreement is drafted, it is circulated for review and comment. Once all corrections have been received, the final version is transmitted to the parties. Then we wait ... the statutory prescribed "rest" period is 7 days ... for all to sign the agreement.

The execution of the prenuptial agreement may be recorded on videotape or stenographically by a certified court reporter.

What is a postnuptial agreement?

A postnuptial agreement is an agreement between spouses, executed during an intact marriage, regarding marital rights and obligations. Other terms used for postnuptial agreements are marital and transmutation agreements.

Postnuptial agreements are usually created to maintain the character of separate property, limit or eliminate the creation of community property during the marriage, provide for estate planning, transmute the character of property (separate to community; community to separate), and limit or waive spousal support if the marriage ends by divorce. A postnuptial agreement cannot promote divorce, require conformance with certain religious practices or other personal issues, and may not bind a Court regarding child custody or child support.

A postnuptial agreement is subject to the Uniform Fraudulent Transfer Act (California Civil Code section 3439 et seq) and, therefore, a postnuptial agreement cannot be entered into with the intent to hinder, delay, or defraud any creditor.

Both parties must have independent legal counsel to negotiate a postnuptial agreement. Both parties must make full and complete financial disclosures to each other. The agreement must be entered into freely and voluntarily. We prefer the Collaborative Law model for postnuptial agreements, with the spouses and their counsel engaging in settlement discussions to negotiate and draft the agreement together. To avoid litigation (such as the recent highly publicized McCourt divorce regarding the Dodgers' ownership), we strongly suggest that the execution of the postnuptial agreement be videotaped by a certified court reporter.