What's the Difference Between Premarital Agreements, Marital Agreements, and Marital Settlement Agreements?

In California, there are three types of agreements that affect marital property - Premarital (Prenuptial) Agreements, Marital (Postnuptial) Agreements, and Marital Settlement Agreements. The main distinction between these three types of agreements is when the parties sign the documents.

California Family Code Section 1610(a) defines a Premarital Agreement as "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage." A Prenuptial Agreement can affect the parties present and future rights and interest related to their upcoming marriage - both while they are alive and after they die. Even though a "prenup" has a broad range as to what interests it can affect, it can not adversely affect a child's right to support.

A Martial or Postnuptial Agreement is an agreement signed by husband and wife while they are married. Like the Premarital Agreement, a Marital Agreement can affect the parties future and present marital rights. It too can affect interests both before and after death.

Finally, a Marital Settlement Agreement is executed for divorce purposes and resolves the parties' disputes over marital property, rights and obligations.

California law imposes specific requirements that must be met in order for these agreements to be both valid and enforceable. As a result, many of these agreements have been challenged in court. To properly draft these agreements, the drafter should be aware of the relevant statutory authority and case law. Even if the agreement is drafted with care and deference to case law and statutory authority, there is no guarantee that the agreement will be "bullet proof." Please note that each of these agreement must meet other requirements that are not discussed in this article due to space constraints. It is encouraged that before you draft or sign any of the agreements discussed above, you retain competent legal counsel to increase the likelihood your agreement will be enforceable.

The information on this blog is not legal advice, nor is it intended to create an attorney-client relationship. Legal questions should be directed to a lawyer of your own choosing.