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California
CALIFORNIA FAMILY CODE
PART 5. MARITAL AGREEMENTS
CHAPTER 1. GENERAL PROVISIONS
Fam. The property rights of husband and wife prescribed by statute may be altered by a premarital agreement or other marital property agreement. §1500
Fam. A minor may make a valid premarital agreement or other marital property agreement if the minor is emancipated or is otherwise capable of contracting marriage. §1501
Fam. (a) A premarital agreement or other marital property agreement that is executed and acknowledged or proved in the manner that a grant of real property is required to be executed and acknowledged or proved may be recorded in the office of the recorder
of each county in which real property affected by the agreement is situated.
(b) Recording or nonrecording of a premarital agreement or other marital property agreement has the same effect as recording or nonrecording of a grant of real property. §1502
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Fam. Nothing in this chapter affects the validity or effect of premarital agreements made before January 1, 1986, and the validity and effect of those agreements shall continue to be determined by the law applicable to the agreements before January 1, 1986. §1503
Article 1. Preliminary Provisions
Fam. This chapter may be cited as the Uniform Premarital Agreement Act. §1600
Fam. This chapter is effective on and after January 1, 1986, and applies to any premarital agreement executed on or after that date. §1601
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Article 2. Premarital Agreements
Fam. As used in this chapter:
(a) "Premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
(b) "Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings. §1610
Fam. A premarital agreement shall be in writing and signed by both parties. It is enforceable without consideration. §1611
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Fam. (a) Parties to a premarital agreement may contract with respect to all of the following:
(1) 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.
(2) 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.
(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
(4) The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
(5) The ownership rights in and disposition of the death benefit from a life insurance policy.
(6) The choice of law governing the construction of the agreement.
(7) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
(b) The right of a child to support may not be adversely affected by a premarital agreement.
(c) Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel. §1612
Fam. A premarital agreement becomes effective upon marriage. §1613
Fam. After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration. §1614
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Fam. (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
(5) Any other factors the court deems relevant. §1615
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Fam. If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result. §1616
Fam. Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party. §1617
Advantages of premarital agreements for both parties:
Avoiding Litigation Costs
Protecting against Fears of Family Members
Protecting Family Assets
Protecting Business Assets
Protection Against Creditors
Child Custody and Support Guidlines
Predetermined Disposition of Property
http://www.california-divorce.com/premarital/prudent.html
http://www.kinseylaw.com/freestuff/persfam/PrenupAgr.html
Warning: California has very specific requirements concerning the contents of prenuptial (premarital) agreements, disclosures and warnings which must be served prior to signing a prenuptial agreement, and concerning their proper execution.
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What's a prenuptial agreement?
Under the Uniform Premarital Agreement Act (UPAA) a prenuptial (or premarital) agreement is “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage”. Under the act, "Property" which may be the subject of a premarital agreement includes any “interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings”.
A Prenuptial agreement may deal with a wide variety of issues between prospective spouses including:
The rights and obligations of each of the parties in any of the property of either or both of them acquired before the marriage.
The rights and obligations of each of the parties in any of the property of either or both of them acquired after the marriage.
The disposition of property upon separation, divorce, or death.
The making of a will, trust, or other arrangement 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.
Why Sign a premarital agreement?
Nobody wants to think at the beginning of a marriage that it will ever end in divorce. However the statistics on divorce in the United States cannot be ignored. Here are some examples:
In 2003 2.3 millions couples married and 1.3 million couples divorced.
In 2003 the Bureau of the Census projected that 4 of 10 first marriages will end in divorce.
People between the ages of 25 to 39 make up 60% of all divorces.
Over one million children are affected by divorce each year.
Approximately 1/3 of divorced parents remain bitter and hostile several years after the divorce.
75% of women and 80% of men remarry within 5 years after divorce.
Second marriages are at greater risk of ending in divorce that first marriages.
More people are part of second marriages today than first marriages.
The sad fact is that, in more than half of the cases, marriages have a beginning, a middle, and an end. And anyone who has been through a divorce will tell you that, without a prenuptial agreement, the end of a marriage can be a litigation nightmare for the parties, for their children, and for other family members.
A properly drawn and executed premarital agreement provides the parties with a measure of certainty as to how property and debts will be divided at the end of an unsuccessful marriage and may greatly reduce or even eliminate the issues which must be expensively litigated. The trouble and expense of drafting and executing a prenuptial agreement generally does not begin to compare with the trouble and expense of the legal battle resulting from the absence of a prenuptial agreement.
California Prenuptial Agreement Procedure:
California has developed strict requirements for the drafting and execution of premarital agreements. It is essential that these be strictly followed. Our office will guide you through these procedures including:
Drafting the agreement in consultation with the client
Drafting advisements and waivers which must be formally delivered to both parties before the agreement can be signed.
Proper execution and notarization of the agreement.
Proper care and storage of the agreement.
Fees & Costs:
Attorney Fees: $1,500 flat
Costs: approximately $30 notary fees.
Texas PreNups
PRENUPTIAL AGREEMENTS
The Barbknecht Firm, P.C.
500 North Central Expressway
Suite 325
Plano, Texas 75074
(972) 312-1510
(972) 312-1511 - fax
End the Pain and Drain of Divorce.
Call The Barbknecht Firm, P.C. for a free initial consultation.
http://www.westhoustonattorney.com/PrenuptialAgreement/tabid/96/Default.aspx
What you need to know if you're considering a prenuptial, or premarital, agreement.
A prenuptial agreement ("prenup" for short) is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns (as well as any debts) and specifies what each person's property rights will be after the marriage.
Terminology
In some states, a prenuptial agreement is known as an "antenuptial agreement," or in more modern terms, a "premarital agreement." Sometimes the word "contract" is substituted for "agreement," as in "prenuptial contract." An agreement made during marriage, rather than before, is known as a "postnuptial," "postmarital," or "marital" agreement.
Who Needs a Prenup?
Contrary to popular opinion, prenups are not just for the rich. While prenups are often used to protect the assets of a wealthy fiancé, couples of more modest means are increasingly turning to them for their own purposes. For example, a marrying couple with children from prior marriages may use a prenup to spell out what will happen to their property when they die, so that they can pass on separate property to their children and still provide for each other, if necessary. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse's property, leaving much less for the kids.
Couples with or without children, wealthy or not, may simply want to clarify their financial rights and responsibilities during marriage. Or they may want to avoid potential arguments if they ever divorce, by specifying in advance how their property will be divided, and whether or not either spouse will receive alimony. (A few states won't allow a spouse to give up the right to alimony, however, and, in most others, a waiver of alimony will be scrutinized heavily and won't be enforced if the spouse who is giving up alimony didn't have a lawyer.) Prenups can also be used to protect spouses from each other's debts, and they may address a multitude of other issues as well. (For more details, see What You Can (and Can't) Do With a Prenup.)
If You Don't Make a Prenup
If you don't make a prenuptial agreement, your state's laws determine who owns the property that you acquire during your marriage, as well as what happens to that property at divorce or death. (Property acquired during your marriage is known as either marital or community property, depending on your state.) State law may even have a say in what happens to some of the property you owned before you were married.
Under the law, marriage is considered a contract between bride and groom, and with that contract comes certain automatic property rights for each spouse. For example, in the absence of a prenup stating otherwise, a spouse usually has the right to:
share ownership of property acquired during marriage, with the expectation that the property will be divided between the spouses in the event of a divorce or at death
incur debts during marriage that the other spouse may have to pay for, and
share in the management and control of any marital or community property, sometimes including the right to sell it or give it away.
If these laws -- called marital property, divorce, and probate laws -- aren't to your liking, it's time to think about a prenup, which in most cases lets you decide for yourselves how your property should be handled. (For more, see Is a Prenup Right For You?)
Making a Valid Prenup
As prenuptial agreements become more common, the law is becoming friendlier toward them. Traditionally, courts scrutinized prenups with a suspicious eye, because they almost always involved a waiver of legal and financial benefits by a less wealthy spouse and they were thought to encourage breakups.
As divorce and remarriage have become more prevalent, and with more equality between the sexes, courts and legislatures are increasingly willing to uphold premarital agreements. Today, every state permits them, although a prenup that is judged unfair or otherwise fails to meet state requirements will still be set aside. Because courts still look carefully at prenups, it is important that you negotiate and write up your agreement in a way that is clear, understandable, and legally sound. If you draft your own agreement, which we recommend, you'll want to have separate lawyers review it and at least briefly advise you about it -- otherwise a court is much more likely to question its validity.
http://usmarriagelaws.com/html/prenuptial_agreements.shtml
What states are they valid in?
Prenuptial Agreements are valid in all 50 states and the District of Columbia. It doesn't matter whether the state is a community property state or an equitable distribution state. Since 1983, at least 26 states have enacted a variation of the Uniform Premarital Agreement Act or UPAA, which encourages the enforcement of prenuptial agreements. The exact UPAA standards differ from state to state so be sure to check out your state Bar Associations' website for details.
Those states who have enacted the UPAA are: Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, South Dakota, Texas, Utah, and Virginia.
What should be included in a prenup?
In order to best safeguard your union, there are certain key issues you should include in your prenup. Be sure to review the following with your soon-to-be spouse:
List all assets, liabilities, income, and expectations of gifts and inheritances.
Describe how premarital debts will be paid.
Resolve what happens to your premarital property in reference to appreciation, gains, income, rentals, dividends and proceeds of such property- in the event of death or divorce.
Decide who, or if both of you, will own the marital residence and secondary homes in the event of death or divorce.
Specify the status of gifts, inheritances, and trusts either spouse receives or benefits from, whether before or after marriage.
Clarify what will happen to each type of property, whether jointly or individually owned, such as real estate, artwork and jewelry.
Figure out alimony, maintenance, or spousal support, or provide for a waiver or property settlement instead of support (to the extent allowable by law).
Detail death benefits, stating what you will provide for in your will.
Decide on medical, disability, life or long-term-care insurance coverage.
Note: Some people may be hesitant to enter a prenup with their beloved, because they believe it destroys the romance and fantasy of their upcoming marriage. A prenuptial agreement, however, gives a couple an opportunity to share their hopes and dreams with one another and articulate their aspirations. The best chance of living up to one another's expectations is knowing what they are in advance and finding out what it is that your partner holds dear. A prenup can intensify the pleasure of a relationship by drawing out the couple's desires, promoting communication and enabling partners to establish for themselves the rules of their marriage. By virtue of this process, a prenup protects the romance that launched the couple and makes happily-ever-after more likely. A relationship based on reality is stronger than a relationship built on illusion.