Prenuptial and Postnuptial Agreements

Prenuptial Agreements are agreements executed between prospective spouses in contemplation of marriage, to be effective upon marriage. They may deal with parties’ present and future property rights, both inter vivos and postmortem, and other related matters incident to the marital relationship.

Postnuptial agreements are agreements executed by husband and wife during the marriage, and affect the rights and obligations incident to an ongoing marriage, both inter vivos and postmortem. This is a broad category, encompassing, among other things, transmutation agreements altering property status. The validity and enforceability of such agreements depends on compliance with applicable statutes, and are generally subject to rules controlling the actions of persons within a confidential relationship.

Fiduciary/confidential relationship spouses are subject to a duty of the highest good faith and fair dealing, whereby neither shall take any unfair advantage of the other. No premarital agreement, marital agreement, or marital settlement agreement may abridge the parties’ statutory child support obligations.

Marital agreement (contracts) are voidable on grounds of “menace” or “duress” to the extent a party’s threats or coercion operated to prevent the other party from exercising free will. Even though independent counsel for both parties is not an essential element, there are many ethical concerns, and it is advised that each party is represented by independent counsel.

There are many requirements for a marital agreement to be valid. Even the most experienced attorney must cross-reference such an anagreement many times to ensure that the contact is not void, and is not voidable in the future. If you are looking for an attorney who will pay attention to the smallest details, please contact Jos Family Law at (714) 733-7066 or jos@josfamilylaw.com.

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