At any point before or during the marriage, spouses may enter into a signed, written agreement regarding whether certain assets or debts are to be community or separate and how property would be divided in the event of a divorce. These agreements usually overcome how a judge may customarily divide property if no agreement was in place.
An agreement that is entered into prior to the marriage is called a “Prenuptial” or “Premarital” agreement. A Premarital agreement takes effect on the date the parties are married and is usually designed to limit the accumulation of community assets and debts.
An agreement entered into during the marriage is a Marital Property Agreement and is sometimes known as a “Partition” or “Postnuptial” agreement. An agreement entered into after marriage is often very similar to a Premarital agreement. However, the parties to a Marital Property Agreement often agree to convert community property into the separate property of the parties, thereby “partitioning” the community property between the spouses.
It is important to disclose the existence of a property agreement to the Court so that the Judge can divide the property based upon the agreement of the parties.
Premarital agreements are rare for the majority of the population, primarily because they carry the stigma of divorce. A couple in love simply do not want to entertain such a horrible result. We want every married couple to succeed. Unfortunately, the statistics are simply too high not to at least explore the purpose behind these types of agreements.
Similar to insurance policies, we hope that we never need them. But prudent people know that a car accident–even one that is not their fault–is enough of a possibility to warrant a tool that can help make the event a little less traumatic.
Divorce is often one of life’s more traumatic events. For a divorce to happen, at least one of the spouses must choose it to happen. And the law does not force anyone to remain married. Therefore, each spouse must realize that, just like each originally chose to get married, that same free-will can be used to decided to get un-married. Pre-determining what is to happen is often better than fighting about these things in the middle of the trauma.