PREMARITAL AGREETMENTS

Question 1

What is a Pre-marital agreement?

Answer 1

A premarital agreement is one made before marriage that is to become effective upon marriage, in which parties agree to the characterization of their property and may limit support obligations. A premarital agreement is typically used to avoid the community property system and must meet stringent requirements to be valid.

Question 2

What are the requirements for a pre-marital agreement?

Answer 2

1. It must not promote divorce: Any terms that create a positive incentive for a party to seek a divorce will not be enforced.
2. Writing required: Premarital agreements must be in writing and signed by both parties , and consideration is not required.
3. Must be made voluntarily: Premarital agreements are deemed involuntary unless the court finds that the party against whom enforcement is sought was:
4. Must not be unconscionable when lacking full disclosure: Occurs when the agreement is unconscionable at the time of execution; an The party against whom enforcement is sought did not have adequate knowledge of the wealth of the other party and did not waive the right to the disclosure of wealth in writing.

Question 3

What is evaluated to determined if a pre-marital agreement was signed voluntarily?

Answer 3

1. Represented by independent counsel at the time the agreement was signed or advised to seek independent counsel and waived it in a separate writing;
2. Presented with the agreement and advised to seek independent counsel at least seven calendar days before signing it;
3. If unrepresented by counsel, the party against whom enforcement is sought must be fully informed in writing of the terms and rights the party is giving up (property/wealth), in a language in which he is proficient (if unrepresented) and declared in writing that he received such information and from whom he received it;
4. Not under duress, fraud, undue influence, and did not lack capacity; and
5. Any other factors the court deems relevant.

Question 4

Can Child support AND spousal support be waived in a pre-marital agreement?

Answer 4

1. Child support cannot be waived by a premarital agreement.
2. Spousal support can be waived by a premarital agreement if independent counsel represented the spouse against whom enforcement is sought at the time the agreement was signed and the provision is not unconscionable at the time of dissolution.