There are some special procedures that you should be aware of for ensuring that your agreement is enforceable against third parties.
- Real Property. Under bona fide purchaser rules, a transmutation of real property is not effective regarding third parties without notice of the transmutation unless it is recorded. Thus, a premarital agreement affecting real property rights and any deed executed in accordance with the agreement should be recorded with the County Recorder to provide constructive notice to third parties.
- Creditors. A premarital agreement may also protect the property of one spouse from the creditors of the other on debts incurred by the other during marriage. The California Supreme Court has suggested that, as long as creditors are given proper notice, a premarital agreement that provides that each spouse’s earnings and acquisitions during marriage will be his or her separate property may preclude creditors of one spouse from taking the earnings and acquisitions of the other because those earnings and acquisitions would not be community property.
Proper notice probably requires, however, that the creditor be informed about the agreement at or before the time a debt is incurred.
Retention of Documents. In case your premarital agreement is ever contested, it is important for you to keep a copy of all correspondence, especially correspondence directed at your fiance, and anything he or she signs.
Divorce Helpline can assist with any questions regarding how to render prenuptials enforceable against 3rd parties; we have over twenty-years of experience in drafting prenuptial agreements. For details on prenuptial agreements check out our articles on the impact of prenuptial agreements on nuptials, common provisions, legal requirements, and what should not be included.