I have a particular specialty in the preparation and review of prenuptial and postnuptial (aka “marital”) agreements, and have worked in this specific area for more than twenty (20) years. With these agreements, a couple can confirm, or alter, the normal operation of California law in the event of a legal separation or divorce, as regards property rights and/or spousal support (alimony). Prenuptial and postnuptial agreements can provide for the same things; the only difference is when they are being prepared.
Key to the effectiveness and enforcement of these agreements are three (3) things: (1) full and accurate disclosure of assets and liabilities, and other information relevant to the issues addressed; (2) careful drafting, tailored to the particular case; and (3) independent legal representation.
These agreements have quite a range, running from simply clarifying what is each party’s separate property, going into the marriage, and preserving that separate property character, to accomplishing what I call a community property “override”, i.e., providing that no community property will be created. In between, a couple has many choices regarding how to treat assets and debts; in many cases, we only address specific assets, such as real property or retirement accounts, when varying from the normal operation of law. Once educated about the normal operation of law, and the various options, a couple can provide for whatever they wish. (The only exception here may be things that are deemed “against public policy”, and are, therefore, unenforceable.)
Most agreements are silent on spousal support in the event of a divorce, but many do address it, limiting the amount, duration of support, and/or the circumstances that must exist before it can be ordered. An agreement that has spousal support provisions is inherently more complex, as there are lots of “moving parts” and lots of options.
Although these agreements can be challenging for the parties, including because it is awkward to be thinking of divorce before the wedding, or in the context of a marriage, when there is no plan to divorce, the process need not be adversarial. If one thinks of the fact that the most common reason for divorce is conflict over financial matters, if a couple can work-through the treatment of their assets and debts, and reach a mutually satisfactory resolution, I believe that this has the effect of solidifying a relationship, not stressing it.