Questions about Prenuptial Agreement Laws

Prenuptial agreements determine who owns and has the rights to property and assets acquired before, during and after marriage. Laws on prenuptial agreements vary from state to state, in which can lead to some uncertainty and questions. Below are five of the most frequent prenuptial agreement questions answered by Experts on JustAnswer.

What are the California laws on prenuptial agreements?

A prenuptial agreement allows a couple to decide how they would divide assets in the event of a death or divorce. By nature, prenuptial agreements are essentially contractual. California is a community property state. In other words, California law regards anything earned during a marriage as belonging to the couple, and not to either of the individuals. However, each of the partners in a marriage can also have separate property. Usually, anything received by inheritance or as a gift, and property owned before marriage and brought into the marriage, is considered individually owned property that does not belong jointly to the couple.

California also recognizes a form of prenuptial agreement nicknamed “full opt-out” prenuptial. This is where a couple declares that community property laws do not pertain to them at all. In other words, what is his is his and what is hers is hers. In the event of a divorce, each party gets their own possessions and monetary assets and nothing more. If you have other questions about California law or prenuptial agreements, you can ask Lawyers on JustAnswer.

Is a prenuptial agreement essential to protect a person against the business debts of their soon to be spouse?

Property and debt from before a marriage is generally considered separately owned or owed as the case may be. A prenuptial agreement clearly defines and identifies these properties and debts. It is always advisable to have a prenuptial agreement drawn up before the marriage to safe guard any assets you own prior to marriage. Another measure that you could also take is to keeping your wages, income and money owned prior to marriage in a separate account.

If someone buys property out of inheritance money from a non-joint account, is the spouse entitled to it?

In the absence of a prenuptial agreement, usually the only way to determine that the property belongs solely to one of the partners is if it can be established conclusively that it was bought with ONLY that partner’s money. Most states consider any property bought after a marriage as community property unless it can be traced back exclusively to one spouse. A prenuptial agreement is recommended to address situations such as these because a valid prenuptial agreement overrides the default rules and divides the property as agreed upon by the two partners.

Can a husband and wife create a legally binding contract to give one another assets replacing a separation agreement?

This is most likely to be classified as a post-nuptial agreement. Post-Nuptial Agreements (also known as “postnups”) are similar to prenuptial agreements. The major differences are that a post-nuptial agreement is signed after marriage and that a post-nuptial agreement cannot waive alimony. It is generally used for estate planning but is also a great tool for married couples wanting to divide rights and responsibilities. If you have specific questions that need clarification about prenuptial or post-nuptial agreements, you can ask lawyers on JustAnswer.

Can an individual do a post-nuptial agreement without an attorney?

In most situations, post-nuptial agreements do not have to be drafted by an attorney to be valid as long as they have all the elements of a contract: offer, acceptance, consideration, mutual assent, legality, and capacity.

Five additional elements that are typically required for a valid post nuptial agreement include:

1. The agreement must be in writing.
2. It must be executed voluntarily.
3. It should have a full and/or fair disclosure at the time of execution.
4. The agreement cannot be unconscionable.
5. It must be executed by both parties "in the manner required for a deed to be recorded", known as an acknowledgment, before a notary public (two witnesses and a notary).

Usually, prenuptial agreements are easy to draw up because there are no standard rules to the division of assets and property. While drawing a prenuptial agreement is relatively simple, the hardest part can sometimes be reaching an agreement on the division of property. You can ask Family Lawyers on JustAnswer to get clarity on your specific questions about prenuptial agreements.