Marital agreements are similar to prenuptial agreements, with one important distinction. They are entered into while the couple is married. This is an important difference, because married spouses have different rights and obligations to each other that do not exist between unmarried parties prior to the marriage.
Once a couple is married, the parties owe each other a fiduciary duty of care. The fiduciary duty between married people imposes on each of them the highest duty to act with loyalty and honesty towards each other (1) to prevent each other from unnecessary risk of harm and (2) consistent with each other’s best interests.
This fiduciary duty does not exist between fiancés. Therefore, when a couple enters into a marital agreement, the parties must negotiate at arms’ length, without any undue influence or pressure imposed on the other, and the deal must be fair to each of them.
A properly crafted marital agreement can be a powerful tool used by the parties to accomplish many things. Most often, it is used to characterize certain property as either community or separate, and is sometimes referred to as a “community property agreement.” It can also be used to address other issues, such as spousal support in limited circumstances.
There is a common misperception that spouses can only negotiate and enter into marital agreements when they are divorcing or separating. When a couple’s marriage is ending, they can certainly enter into a marital settlement agreement. However, nothing under the law prevents them from negotiating and entering into marital agreements at any time during the marriage to keep a record of their agreements and to prevent potential future misunderstandings and conflict.
We can assist you with drafting and negotiating an enforceable marital agreement to this effect. We can also review a proposed agreement and negotiate improvements, or evaluate an existing agreement and advise you to its strength and validity under current California law.
Contact us or call (925) 465-2500 or (707) 398-6008 for more information or to schedule an initial consultation at Sparks Family Law, Inc. with attorney Gary D. Sparks.