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What can be in a prenuptial agreement and when is it in effect?

Couples in California who decide to get married will often want to protect themselves against the possibility of divorce. Frequently, premarital agreements (also referred to as prenuptial agreements) are perceived as something to have when one spouse has a significant portfolio of assets while the other is of more modest means. However, that is not necessarily the case. Many people, regardless of the financial situation, want to be protected in case the marriage does not work out. Since divorce legal issues will center around property division and other financial circumstances, knowing what a premarital agreement can do is imperative, even after the marriage has been completed and the couple is considering a divorce.

A premarital agreement can list the rights and obligations of the parties with regards to property belonging to either or both, no matter when and where it was acquired. It can detail the right to sell, purchase, use or do anything else with the property. When the couple separates, divorces, one of the spouses dies or something occurs or does not occur, the agreement can dispose of the property. The agreement can govern the creation of a will, trust or other method of the agreement being carried out.

If there are ownership rights and disposition of the proceeds of a life insurance policy, the premarital agreement can dictate how this is handled. The law that governs the manner in which the agreement is constructed can be part of the contract. Courts in the chosen jurisdiction can oversee any other issue in the marriage regarding personal rights or obligations, if it is not a violation of criminal law. Any child support provisions in the premarital agreement are unenforceable. The agreement will go into effect when the parties marry. After the marriage, it is possible that the agreement will be revoked or amended based on a handwritten agreement that the parties have signed.

For couples that have decided to divorce, the premarital agreement is there to dictate how the above factors will be dealt with. However, there could still be a litany of issues that come to the forefront when a couple divorces, even if they have a premarital agreement. Those planning to execute a premarital agreement for the first time or those seeking to have it enforced during the divorce process will want to ensure they understand their rights.

Source: leginfo.legislature.ca.gov, "Article 2. Premarital Agreements," accessed on May 15, 2018

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