Don Hansen is not only a family law litigator, he is also a family mediator and a collaborative law attorney.

A Premarital agreement, sometimes called a prenuptial agreement or a "prenup", is a written agreement between two people prior to marriage about their property and possibly support rights when their marriage ends.

All marriages must, as a matter of law, come to an end. If a marriage does not end by an annulment or divorce, it will end when one spouse dies. Therefore, it is very likely that the terms of a premarital agreement will eventually come into play in determining the assets and obligations of the spouses.

A premarital agreement is a very important part of wealth preservation and asset protection planning. Prenuptial agreements are very powerful legal instruments that, unless successfully challenged and overturned, will control the distribution of property when the marriage ends. Premarital agreements are occasionally beneficial for first marriages where one spouse has acquired property or wealth prior to the marriage, or where a substantial family inheritance is anticipated. Prenuptial agreements are especially beneficial for second marriages or marriages later in life because they protect separate property and potentially greatly reduce the cost of attorney's fees that might be incurred fighting about the property should there be a divorce.

Protecting one's property for children of a former marriage is a common reason for a premarital agreement. A well-drawn premarital agreement can prevent unseemly and expensive lawsuits between the surviving spouse and the deceased's heirs. It can also protect one party from his or her spouse's attempts to set aside gifts that the party may have made to his/her children or other third parties during marriage.

Because California marital property law is constantly changing and the attitudes of husbands and wives may change over time, prenuptial agreements are advantageous in providing greater certainty as to the division of separate and community property when the marriage ends.

Another important function of a prenuptial agreement is protecting one spouse against the premarital debts and obligations of the other spouse. For example, if the husband is coming into the marriage with outstanding tax liabilities, support obligations to a former spouse or children, a pending lawsuit, debts to other creditors, or other real or potential financial obligations, a premarital agreement may be helpful in protecting the new wife's property or earnings from the husband's creditors.

Premarital agreements can provide a comprehensive plan for property division or they can deal with just one or a few assets. For example, if the spouses want to specify how a house owned by one of them before marriage will be dealt with, that would be a proper subject for a premarital agreement. Likewise, if they want to agree how all of their property will be divided in the event of death or divorce, that's okay too.

In California, the Uniform Premarital Agreement Act is intended to enhance the enforceability of prenuptial agreements. Senate Bill 78 became effective January 1, 2002, and imposed additional requirements for a prenuptial agreement to be enforceable. These include:

• Both spouses must be independently represented by separate attorneys, unless a spouse is advised to seek legal representation and waives hiring an attorney in a separate written instrument. For this reason, our office will only represent one of the spouses to the agreement; never both.
• Both spouses must have at least seven (7) calendar days from the time they are first presented with the agreement to study and consider it before signing.
• If one spouse is not represented by an attorney (and has signed a separate written waiver) he or she must be "fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she is giving up by signing the agreement." This must be in writing and presented in advance of the signing of the Agreement.
• The written explanation of the agreement and the agreement itself must be in a language which the unrepresented spouse is "proficient."
• The spouses must make a fair, reasonable, and full disclosure of their assets and debts, unless a spouse waives financial disclosure in writing. In most cases, we strongly encourage our clients to make full financial disclosures to improve the probability that the prenuptial agreement will be enforced by the courts.
• Spousal support waivers are enforceable, but only if the spouse waiving support is represented by an independent attorney and the waiver is not "unconscionable" at the time the premarital agreement is enforced (Family Code section 1612).

Despite these restrictions, premarital agreements remain viable tools. But this serves to illustrate why a knowledgeable and experienced attorney must be employed in preparing a marital agreement that has the strongest possibility of later standing up in court.