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

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Division Marital Property Divorce Law

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

Yes, as long as the agreement meets with the requirements under state law.

An “ante-nuptial” (from ante=before, not anti=against) or “premarital agreement” is a legal contract between two people who are about to be married. In the 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/or 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, with sufficient disclosure, alters the state’s typical rules for the division of marital property upon divorce or death.

A post marital agreement is a similar contract between a husband and wife, but after they are married. This agreement may alter the rules for the division of property between the spouses in the event of divorce or death. A particular form of post marital agreement, often referred to as a Marital Settlement Agreement, specifies the distribution of property and responsibility for debt between the respective spouses as part of the divorce proceeding.

Laws in each state governing these agreements vary from state to state. To be valid in most states the agreement must:

be in writing

be signed by both spouses

have been accompanied by sufficient disclosure of all the assets, income and debt of each spouse

have allowed the parties ample opportunity to consider its contents, and obtain legal advice, before signing, and

be free from fraud, duress and entered into freely and voluntarily.

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