Can premarital and post-marital agreements alter the division of marital (community) property?

As long as the premarital agreement meets with requirements that the state’s law imposes, it can alter the division of marital (community) property. Similarly, post-marital agreements may set reasonable terms for the division of marital property.  The most important thing to keep in mind in making sure your premarital and post-marital agreements are honored is that you follow the proper contractual rules when creating the documents.

Premarital Agreements

In a premarital agreement, the prospective husband and wife may agree upon the rights that each will have to the property that they bring into the marriage and acquire during the marriage. They may also agree as to the amount of support owed to the other in the event of divorce and their respective inheritance rights. The premarital contract, if properly made and with sufficient disclosure, alters the state's typical rules for the division of marital property upon divorce or death. To ensure that your pre-marital contract is found to be valid, there are three rules that must be followed:

• Always have separate legal council for negotiating the agreement and ask that the attorneys draft a certificate of independent legal council and attach it to the agreement.
• Be completely honest. In order for the contract to be held valid, you cannot keep any assets or liabilities a secret. Simply put, if the court finds out you were lying, there are grounds to hold the contract invalid and default law would be used instead during your divorce.
• Do not wait until the last minute to draft and sign the contract. Ideally, this agreement should be signed three to four months before your wedding. This ensures proof that neither of you were forced into the agreement and still allows time in case the wedding must be canceled due to disagreement.

Post-Marital Agreements

A post-marital agreement may alter the rules for the division of property between the spouses in the event of divorce or death. A Marital Settlement Agreement is a particular form of post-marital agreement that specifies the distribution of property and responsibility for debt between the respective spouses as part of a divorce. When forming this agreement, the previous rules listed for pre-marital agreements must be followed exactly because the courts will analyze a post-marital agreement with greater scrutiny under the assumption that once married, couples have limited ability to bargain.

Whether signing a premarital or post-marital agreement, each party needs to consult a separate attorney.