Pre-marital and Post-marital agreements

(US family law and general advice) This article is brought to you by San Diego Family Law Attorney Tara Yelman of Yelman & Associates.

Pre-marital agreements (pre nuptials) used to have a very negative connotation, but have become more widely-used and socially acceptable in recent years. Due to rate of occurrence, range of wealth and the heightened level of equality between men and women, most courts no longer frown upon prenuptial agreements or assume that either party has a wandering eye or wavering values.

A prenuptial agreement, or “prenup,” is a written contract created by a couple before they are married. A prenup usually lists all of the property each person owns and all of each person’s debts prior to tying the knot, and specifies what each person’s property rights will be in the event that the marriage ends. Reasons that couples get prenups vary, but listed below are some of the most common:

  • To provide clarity about financial rights and responsibilities during the marriage
  • To provide protection from each other’s debts
  • Especially in circumstances when one or both parties has children from a previous marriage, a prenup can provide protection and structure regarding what is given to the kids in case of death.
  • For precautionary reasons: without a prenup a couple will be subject to divorce laws in their state.

If a couple decides to enter into a marriage without a prenup but later notices that they should have done so, they can create a postnuptial agreement. A postnuptial agreement is a contract that is signed after the couple has already been married. Although they are becoming more commonly used, “postnups” are not yet valid in every state and are more likely to be scrutinized by courts because they can be viewed as “divorce-planning tools.” Below is a list of some reasons married couples choose to get postnups:

  • The couple wants to amend their prenup
  • New business ventures: For example, it is common that in the case that one party enters into business with a new partner, the partner will request that the party get a postnup in order to ensure that the party’s spouse does not receive any of the business after the marriage.
  • Separate property is used to purchase community property
  • One party receives a significant inheritance

Most couples are able to create the contents of their prenups and postnups on their own, however it is crucial for each party to hire a separate lawyer to review the contracts and advise each individual client. Entrusting a lawyer is also important to ensure that the document is legally sound, and to avoid the possibility of a court questioning its’ validity.

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