Also known as: marital agreements · antenuptial agreement · postnuptial agreement
Written by attorneys · grounded in primary & secondary sources — see below
A contract between spouses who intend to remain married that affirms, modifies, or waives a marital right or obligation during the marriage or at separation, marital dissolution, death of one spouse, or another event.
Mason McCarthy and Michelle Murphy signed a marital agreement waiving spousal support. Years later Michelle developed a disabling illness that left her unable to work. When they divorced, the court refused to enforce the waiver because enforcement would cause substantial hardship from a material change in circumstances after signing.
Malcolm McKinley and Maya Malik signed a marital agreement allocating future business earnings to Malcolm alone. In their divorce proceeding the court considered the agreement when equitably apportioning property and assets acquired during the marriage, weighing its terms against the statutory factors for fair division.
Select any source to read its text and confirm it supports the definition.
Miranda Morales and Miles Montgomery executed a marital agreement eliminating spousal support. After separation Miranda qualified for public assistance. The court ordered Miles to provide support sufficient to prevent eligibility for public aid despite the agreement's terms.
Morgan Financial executives Miranda Morales and Malcolm McKinley signed a marital agreement governing disposition of frozen embryos if they divorced. When the marriage ended, the court declined to enforce the agreement's destruction clause because it conflicted with public policy favoring the contemporaneous wishes of the donors.
A marital agreement between already married spouses becomes effective when both parties sign it, unless the agreement itself states a later date or condition.
A premarital agreement is made in contemplation of marriage and becomes effective only upon marriage. A marital agreement is executed by spouses and takes effect upon signing.
A court may refuse enforcement if the term was unconscionable when signed or if enforcement would cause substantial hardship because of a material change in circumstances after signing.
The agreement must include conspicuous language substantially similar to the statutory waiver notice or a plain-language explanation of the rights being waived.
No. A marital agreement is enforceable without consideration provided it meets the other statutory requirements such as being in a signed record.
…of Dawley (1976) 17 Cal.3d 342 [131 Cal. Rptr. 3, 551 P.2d 323] offers a close analogy. Rejecting the contention that an antenuptial agreement is invalid if the parties contemplated a marriage of short duration, we pointed out in Dawley that a standard based upon the subjective contemplation of the parties is uncertain and…