Premarital Agreements and Transmutation Rights

At the Orange County Law Office of David P Schwarz we have drafted numerous prenuptial agreements where transmutation of property is an issue. Please contact our office at 949 735 9266 or via the web. We can also be reached by email at

A prenuptial lawyer will look at the intent of the parties upon discerning what intent of parties was at time of drafting the agreement. Typically the parties' intent in executing a premarital agreement is to avoid or alter applicability of California community property law to assets already owned by each and to property and income to be acquired or earned during their marriage. They want to make sure separate property remains the separate property of the party without any confusion as to ownership rights.

Specifically, premarital agreements may validly provide that the earnings and accumulations of each party during marriage will remain that party's separate property, free of any claims, community property or otherwise, of the other party as in the Marriage of Dawley.

A premarital agreement attorney will also make sure premarital transmutation agreements that are valid under state law are also binding on the Government for tax purposes and thus relevant to determine proper apportionment between former spouses of overpayment claimed on prior joint return. This is a common issue that arises and needs to be worked out in the premarital agreement.

At the Orange County Law Office of David Schwarz we will make sure inheritance rights are properly accounted for in the agreement. Frequently, a related purpose is to preserve a party's estate for his or her heirs, free of the other party's inheritance claims. A preregistration domestic partnership agreement is enforceable and can effectively waive partner's rights in deceased partner's estate.

Support provisions

Child support: Agreements fixing or waiving child support are invalid to the extent they derogate from the parents' statutory child support obligation

A premarital agreement lawyer can assist a party to waive spousal support. A premarital (or other) agreement cannot validly waive the mutual duty of support owed between spouses while they are married and living together

On the other hand, when entered into voluntarily by parties who are each represented by independent counsel and aware of the effect of the agreement, a post-1985 premarital waiver of postdissolution support does not offend contemporary public policy and is not per se unenforceable. [Fam.C. § 1612(c).

Premarital agreements have become increasingly common. One of the apparent reasons is that, more frequently, people are entering marriage with children and property from a prior marriage; their concern is to preserve preexisting property rights and interests for their own children and heirs (above) and to avoid problems in this regard if the contemplated new marriage ultimately breaks up.

At the Orange County Law Office of David P Schwarz we will make sure your premarital agreement is written in a way to make sure you are protected from a future marital obligation. Please contact our office at 949 735 9266 or via the web. We can also be reached by email at

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