PREMARITAL AGREEMENTS
A "premarital" or "antenuptial" agreement is a contract executed between the parties in contemplation of marriage which fixes marital property rights and the financial responsibilities of the parties upon consummation of the marriage. Provided they are freely entered into by the parties, and do not violate public policy, premarital agreements are favored by the courts. In fact, proper agreements are encouraged because they narrow matters open to potential later dispute and thus help avoid protracted litigation. Believe it or not, if the agreement meets certain minimal standards, public policy and the courts view the agreements as encouraging rather than discouraging marriage.
These agreements are generally used to fix property interests and inheritance rights. Usually, the intent is to avoid or alter the applicability of California community property law to assets already owned by each and to property and income to be acquired or earned during their marriage. Thus, if no agreement is made between the spouses, all property acquired during the marriage by the labor of either spouse is community property owned equally by both spouses. These agreements change that rule.
A well drafted premarital agreements can validly provide that the earnings and accumulations of each party during marriage will remain that party's separate property. The property will thus be free of any claims, community property or otherwise, of the other party. It works the same way for inheritance rights.
There are certain restrictions to premarital agreements. For example, agreements fixing or waiving child support are invalid to the extent that they derogate from a parents' statutory child support obligation. And, premarital agreements cannot validly waive the mutual duty of support owed between spouses while they are married and living together. The agreements may, however provide for spousal support obligations after the marriage terminates. It is strongly encouraged that you consult with a lawyer before entering into any premarital agreement.