What Is the Difference Between a Prenup and a Premarital Agreement?
There’s no difference. The phrases prenuptial agreement and premarital agreement and the word “prenup” all refer to the same thing: an agreement signed prior to marriage which contracts to modify the rights and obligations of parties from the statutory rules which govern the characterization of real and personal property as community property, the division of community property on divorce and the statutory rules regarding spousal support (also known as alimony).
The Uniform Premarital Agreement Act (UPAA) governs California premarital agreements and states prenuptial agreements made after 2002 will be enforced against a spouse only if that spouse:
- received complete information about the other spouse’s property and finances prior to signing the agreement
- had at least 7 days between first receiving the agreement and signing it (to allow enough time to have an attorney review the agreement), and
- was represented by a separate attorney when signing the agreement.
What can be addressed in a premarital agreement?
- A prenuptial agreement typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage
- Often the agreement states that the separate property of each party will remain separate property and the assets obtained during marriage will not be community property
- The agreement may specify how finances and assets will be handled during the marriage
- The agreement may specify spousal support terms
- The agreement may address business ownership issues
- The agreement may specify what happens with disability and other insurance coverage
- A couple can agree to provide a child with more support than the law requires. For example, they can agree on how to divide responsibility for a child’s future college expenses or whether to provide other support for an adult child.
What cannot be addressed in a premarital agreement?
- The parties cannot contract to avoid the statutory rules regarding child custody and child support.
- Public policy prohibits agreements that would alter the relationship duties of marriage. Marriage includes duties of mutual respect, fidelity, and support. So for example, an agreement to pay compensation for “domestic services,” or “companionship” isn’t valid, because those services are already duties of marriage.
Learn more about prenuptial agreements, how to perfect them, and the grounds for disputing them here.