Validity of Pre-Nuptial and Post-Nuptial Agreements

Prenuptial Agreements
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When parties enter into pre-nuptial agreements or post-nuptial agreements there may be issues of interpretation and/or validity in a future divorce proceeding. There are certain presumptions that apply to these agreements. These presumptions are rebuttable and can be overcome with sufficient evidence. If the parties do not agree as to the validity of an agreement, the divorce court will determine the issue. Trials on these issues can be extensive and may involve issues including unconscionably, the nature of the relationship between the parties when the agreement was executed, undue influence, voluntariness, lack of accurate disclosures, compliance with family code requirements relative to execution of the pre-nuptial agreements and issues of contractual interpretation.

A pre-nuptial agreement allows parties to alter most of the rules that will apply if they elect to divorce in the future.  These agreements, if held to be valid, essentially replace community property laws.

They can convert what would have been community earnings to separate property earnings.  Separate property income is generated before marriage, after separation or from separate property assets during the marriage.

Separate Property
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Community Property
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Separate property is property acquired before marriage, after separation or during marriage by the way of inheritance or qualified gifts.  Pre-nuptial agreements can alter these laws.

To be valid, gifts between spouses must meet the specific qualifications of the California Family Code. A clear intention, by itself, to give an item to the other spouse, does not replace or overcome the requirements of the Family Code. There are no restrictions relative to gifts of wearing apparel, jewelry or other tangible articles of personal nature solely or principally used by the recipient spouse and not substantial in value considering the economic circumstances of the marriage.

A vehicle of any price cannot be characterized as a gift in that it is not a tangible article of a personal nature. Whether items of art or furniture can be items solely or primarily used by one spouses are a question of fact.

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Pre-nuptial agreements may alter the rules relative to the definition gifts.

The terms of a pre-nuptial agreement cannot bind a divorce court relative issues related to child custody or child support.

Parties may contract with each other relative to the amount and duration of spousal support.  However, the validity of this provision will be determined by a divorce court's interpretation of the unconscionability of the terms of the agreement as it exists on the date of a divorce.

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