California is a community property state and, therefore, property acquired during marriage by married persons is presumed to be community property. If a party has assets or a family business in which he or she does not want the community to gain an interest, then the way out of the community property system is an agreement to manage property acquired during marriage in another way. Pursuant to the Uniform Premarital Agreement Act (codified in Family Code sections 1600-1615), premarital agreements must be timely, allowing an opportunity for counsel to review any proposed agreement. Depending on the terms of the agreement, failure to allow enough time to hire counsel to review an agreement may make the agreement unenforceable and full disclosure of all property is required unless there is a waiver. As a matter of practice, counsel should be utilized by both parties entering into a premarital agreement to ensure rights are protected or knowingly waived.
Post-martial agreements are agreements regarding property entered into after the parties are married. During the marriage, parties may contract to modify or prevent the application of community property law to their property.
While there are no statutes specifically governing post-marital agreements, when parties are married, they are in a fiduciary relationship with one another and they are subject to Family Code sections 721 and 1100, and neither spouse shall take unfair advantage of the other in entering into a post-marital agreement. Family Code sections 850-852 govern transfer of property from one spouse to another or the community to one spouse. Transmutations must be in writing, especially if the value of the asset is significant relative to all assets of the parties, and there must be an agreement to the transfer of the asset.
Pre- and post-marital agreements are subject to interpretation by the courts, sometimes long after they are entered into. In order to ensure that your rights and assets are protected, contact Attorney Rizzo to discuss your goals to ensure that your agreement meets those goals and is enforceable in a court of law.
