We are often asked what content can be put in a Pre-Marital Agreement. Truthfully, there are many things. The Family Code governs family law.
According to the Family Code, premarital agreements can contain the following:
- 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.
- 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.
- The disposition of property upon separation, marital dissolution, death, or the occurrence or non-occurrence of any other event.
- The making of a will, trust, or other arrangements 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.
Limitations on child support, child custody, religion, damages for infidelity, among a few other things, are unenforceable and not usually included in a premarital agreement.
Also, the law states that there is a deadline when it comes to entering into a premarital agreement so it is not something you want to complete at the last minute. There is a seven (7) calendar day rule. You want to ask an attorney about this.
If you find you are within that 7-day window and it is too late for a premarital agreement, you may also consider a postnuptial agreement, or “post-nup”. This is an agreement that takes place after the marriage has already occurred. The reasons for obtaining one would be the same as those mentioned for a premarital agreement. The thing to consider with a post-nup is that the act of marriage gives rise to strict legal fiduciary obligations between the couple and are very closely scrutinized and often challenged. It is highly important that an attorney draft this document or any premarital agreement.
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Mendes Weed, LLP offices are located in Walnut Creek and our skilled attorneys provide family, tax, business and trust law assistance for clients. For your convenience, we also have attorneys' offices in San Francisco and Sacramento by appointment only.
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