Planning Ahead with a Premarital Agreement
Who can enter into a premarital agreement?
Nearly anyone of legal age may enter into a premarital agreement, provided both parties are of “sound mind.” The “sound mind” requirement ensures the parties are aware of what they are doing by executing a premarital agreement as well as understand its effects.
What is needed for a premarital agreement to be valid?
A premarital agreement must be made “in contemplation of marriage.” In other words, the parties enter into the contract with the intent of marrying one another. In fact, the parties need to get married for the agreement to even become binding. Additionally, the premarital agreement must be in writing and signed by both parties. Most importantly, both parties must freely consent to the agreement; use of threats, authority and/or confidence, or misrepresentation can render an otherwise valid premarital agreement voidable. To ensure that each party is entering the agreement on his or her own free will, it is advised that each party individually seek advice from a lawyer who can review with him/her the terms and effect of the premarital agreement.
Are there provisions that could render a valid premarital agreement invalid?
Like most contracts, a premarital agreement can cover nearly any subject matter this is not illegal. However, there are certain provisions within a premarital agreement that will not be enforced, even if the premarital agreement is otherwise valid. The law views such provisions as contrary to public policy. The following list provides a few examples of provisions that are against public policy:
- altering child support obligations;
- changing the duty of supporting one’s spouse during the marriage;
- changing California’s no-fault divorce standard;
- agreements to raise children in a particular religion;
- paying for domestic services/companionship; and
- removing the obligation of fidelity or mutual respect.
If a premarital agreement does contain a provision that seeks to alter the rights mentioned above, the agreement as a whole is invalid, unless the agreement contains a severability clause. A severability clause permits a court to strike an offensive provision while leaving the remainder of the agreement valid. To protect the parties’ interests, a severability clause should be included in a premarital agreement.
Are premarital agreement’s entered into in other states valid in California?
Yes, for those who entered into a premarital agreement after 1986, the agreement is governed by the Uniform Premarital Agreement Act or “UPAA” rather than state law. This means that a premarital agreement entered into one state can typically be enforced in California, if the premarital agreement meets the validity requirements set forth in the UPAA.