At Quinn & Dworakowski, our attorneys are experts in writing prenuptial, postnuptial and cohabitation agreements, and we ensure that our client's interests are fully protected. In California, unmarried couples who live together, couples who intend to marry, and parties who are married, can enter into valid agreements creating or altering their rights, interest, and obligations should the marriage terminate. Such prenuptial, postnuptial & cohabitation agreements provide greater certainty to the parties.
For example, parties intending to marry wish to define and preserve the separate property character of assets they own and to determine the disposition of that property and property acquired during marriage upon separation, marital dissolution, or death. Such couples may also wish to address their obligations for support, if any, to each other in the event the marriage ends. Married couples too often wish to clarify, define, or redefine the character of property in the event of the marriage terminates.
Enforceable agreements can be reached between parties before they marry (prenuptial agreements) conditioned upon their marriage, or after they marry (postnuptial agreements). Most postnuptial agreements are, in effect, transmutation agreements wherein the parties seek to change the character of property from community to separate, from separate to community, or from one's separate property to the other's separate property. Transmutation agreements must be in writing to be enforced and must contain an express declaration by the spouse adversely affected.
Additionally, couples who live together and engage in sexual relations may enter into contracts which define their rights and obligations, if any, owing to each other as a consequence of their cohabitation. The enforceability of cohabitation agreements was recognized by the California Supreme Court in Marvin v. Marvin (1976) 18 Cal.3d 660). Unlike premarital agreements and transmutation agreements, cohabitation agreements need not be in writing to be enforceable. In fact, such agreements may be implied from the conduct of the parties. Non-marital cohabitants are permitted to enter into enforceable agreements regarding their earnings and property rights.
Rules regarding the creation and enforceability of premarital agreements and transmutation agreements are prescribed by law. Cohabitation agreements and other post-marital agreements are subject to contractual interpretation, case law, and public policy application. In all instances, it is crucial that prenuptial, postnuptial & cohabitation agreements be drafted carefully and in compliance with the law. The validity and enforceability of these contracts may be considered many years later under far different circumstances than existed at the time of execution. Both sides should have competent legal counsel.