Types of Marital Agreements

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 Family Code.

Prenuptial agreements

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.

Post-marital 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.

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