Faith Jansen Law & Mediation

PRE-MARITAL AGREEMENTS

The Purpose of a Pre-Marital Agreement

A pre-marital agreement (also known as pre-nuptial agreement) is a binding contract entered into between two people engaged to be married, in which the parties to the agreement intend to create a different set of property, debt, and spousal support rights and obligations than the legal relations they would have under the “default” California family law. Some pre-marital agreements provide that property or retirement benefits acquired during marriage, which would otherwise have been marital/community property, will instead be the separate property of the spouse or partner who acquires or earns it. Other pre-marital agreements limit the spousal support rights of one or both parties. The purpose of each pre-marital agreement varies with the goals of the parties. Sometimes a couple may get the result they want without an agreement, by keeping pre-marital property segregated from (not commingled with) property acquired during the marriage. For other couples a pre-marital agreement is necessary to obtain the property, debt, and support results they want.

Negotiation By Attorneys as Legal Representatives

To fulfill the legal requirements for a valid pre-marital agreement in California, each party to the agreement needs to retain his and her own attorney. One of the parties may retain Ms. Jansen as his or her legal representative and work with her to prepare an initial draft of the agreement. That draft is sent to the other party’s attorney to review with the other party. The parties and attorneys may have face-to-face four-way meetings or the attorneys may confer one-on-one as spokespersons for their clients. The draft of the proposed agreement is revised until it is fine-tuned to the mutual satisfaction of both parties. When the text of the agreement is finalized, the parties and their attorneys sign it. Each party gets a duplicate original of the fully executed agreement. Nothing is filed in court because no court case is created.

First Marriage Pre-Marital Agreements

Particularly in a first marriage, a pre-marital agreement is not to be entered into lightly or without obtaining several hours of legal advice. There is a risk that one or both parties may end up worse off under a pre-marital agreement than he, she, or they would have under the “default” provisions of California family law. Ms. Jansen takes the time to inquire what her clients think the “default” law would do in their case and why a deviation is desired. She ascertains what are the concerns and objectives of her clients, counsels them on how they would be treated under the “default” law, and advises them on what alternative treatment may be achieved by a pre-marital agreement. Ms. Jansen supports the creation of fair and balanced pre-marital agreements. She will confer with her clients to assure that they are acting voluntarily and intelligently, free from undue influence or coercion. She reserves the right to decline to draft or execute an agreement which she believes a court could deem void as unconscionable at the time of execution or that a court might later deem unenforceable based on it producing unconscionable results in the future.

Second Marriage Pre-Marital Agreements

People entering into a second marriage may wish to draw up a pre-marital agreement to create an arrangement which clearly preserves the separate property that each party brings into the marriage. A pre-marital agreement is often coupled with an estate plan in which each party’s assets will ultimately go to their respective adult children. A pre-marital agreement may include provisions for how to pay for the future care of an aging spouse while protecting each spouse’s pre-marital separate property and separate income from being transmuted to community property and from surviving spouses’ inheritance claims. The goal of a pre-marital agreement in second marriages is for each party to plan ahead at the beginning of the marriage to take care of herself or himself, take care of each other, and take care of heirs, all in the context of a mutually respectful, honorable, and committed new relationship.

Mediation Not Recommended for Pre-Marital Agreements in California

The California Family Law Code contains provisions which require both parties to a pre-marital agreement to have been represented by their own attorney during its negotiation. For this reason mediation is not recommended as a method for negotiating a pre-marital agreement UNLESS the mediation model includes the physical presence of an attorney representing each party at all times during the mediation process. For the same reason, a pre-marital agreement should not be presented to a self-represented party for his or her signature. That party should be required to retain an attorney to receive the proposed draft of the agreement, thereby creating the structure for that party to obtain the requisite legal representation. In contrast to pre-marital agreements, it is possible to use Mediation to negotiate a Post-Marital Agreement as soon as desired after the date of marriage.

Compare the Effect of Having No Agreement

For people getting married for the first or second time, a pre-marital agreement may or may not be a good idea. Before assuming that a pre-marital agreement is better than going along with the “default” result of the California Family Law, each party should get legal advice.

Time Frames for Negotiating a Pre-Marital Agreement

The California Family Law Code requires a pre-marital agreement to be negotiated at a reasonable time prior to marriage, giving each party an opportunity to obtain legal counsel without being subjected to undue pressure because of an imminent wedding date. The pre-marital agreement should be negotiated and signed before a wedding date is set, monetary deposits are put down on wedding venues, wedding invitations are mailed, or public wedding date announcements are made.

Post-Marital Agreement as Back-Up Option

If there is insufficient time to negotiate a pre-marital agreement or if the parties prefer using a Mediation process instead of using attorney negotiators, they may do a Post-Marital Agreement as soon as possible after their date of marriage.