Whether prior to marriage, after the marriage occurs, or as a result of
divorce proceedings, marital agreements often come in to play.
In California, there are three types of marital agreements: 1. Pre-marital
agreements (also referred to as
prenuptial agreements or
ante-nuptial agreements); 2. Post-marital agreements (or simply called
marital agreements); and 3. Marital settlement agreements. All of these agreements are covered
by California statutes, and legal if created within the laws of the California
As the name implies, prenuptial agreements occur between two parties contemplating
marriage usually when one or both of the parties have pre-existing property
rights they wish to preserve after they marry.
Beginning with Section 1600 of the Family Code, the law states what can
and cannot be included in prenuptial agreements and how to ensure the
enforceability of the agreements.
Because these codes can be complicated, it is in the best interest of both
parties to obtain separate legal representation in creating these agreements.
As the name implies, post-marital agreements occur after two people marry,
and agree to change marital or potential marital rights.
Unlike parties in a pre-nuptial agreement, parties in a post-marital agreement
are considered fiduciaries of each other. In other words, since they are
married to each other, they owe each other the highest duty of good-faith
interaction with each other at all times. Parties to a pre-nuptial agreement
are not fiduciaries to each other, and are held to the same standard as
other non-married parties entering into agreements.
Because of the fiduciary duties of each party, the magnitude of changing
their marital legal rights, and the vast areas of law potentially involved
(from probate law to family law to federal laws), it is always in the
best interests for both parties to obtain competent legal representation
to ensure the desired results of the agreements.
Marital Settlement Agreements
Often referred to as an
MSA, a marital settlement agreement occurs at the time of divorce. The MSA
will include provisions resolving the soon-to-be-divorced parties’
property issues, any parenting schedules (including custody and visitation
issues), support amounts (spousal and/or child), and any other topic affecting
the couples' rights after the marriage. Again, due to the number of
complex issues, and the affect they will have on the parties (and possibly
their children) for many years to come, it is in the best interests of
both parties to obtain competent legal representation.