Pre-nuptial and post-nuptial agreements avoid the statutory rules and regulations the state has placed on each spouse’s property. A properly prepared agreement clarifies the property division if a dissolution were to occur and helps avoid prolonged court proceedings. In order to be enforceable, a pre or post-nuptial agreement must pass the two-pronged Floran test. If the agreement is fair on its face it is valid. This is referred to as “substantive fairness.” If it is substantively unfair, the agreement may still be valid if (1) full disclosure of the amount, character and value of the assets involved has been disclosed and (2) both parties have assistance of independent legal representation or the unrepresented party has a full understanding of the legal consequences of the contract such that their entry into the contract is intelligently and voluntarily made. This second prong of the Floran test is referred to as “procedural fairness.” A lawyer representing the economically advantaged party should insist that the other party have independent legal counsel in order to ensure the agreement is enforceable.
Spouses can enter into separate property agreements. Separate property agreements designate property or future acquisitions that would be community property as separate property. In order to be enforceable, a separate property agreement must meet the same standards as those summarized above for prenuptial agreements.