"Marital agreement" is not one specific document under California law. It is an umbrella term, and knowing which of the four common types applies to your situation determines which rules, and which existing Virdix guide, actually cover it.
Key Takeaway: California recognizes four main types of marital agreement: premarital (before marriage), postnuptial (during marriage), marital settlement (resolving a divorce or legal separation), and separation agreements (while living apart). Each is governed differently: premarital agreements follow the Uniform Premarital Agreement Act, while postnups and MSAs are shaped by the general spousal fiduciary duty and California's rule that community property is divided equally absent a contrary written agreement.
What Types of Marital Agreements Exist in California?
Four types come up most often in California family law:
- Premarital (prenuptial) agreement. Signed before the wedding, governed by the Uniform Premarital Agreement Act at Family Code Sections 1610 through 1617. Our prenuptial agreement guide covers cost, enforceability, and what it cannot control.
- Postnuptial agreement. Signed after the wedding, while still married. California has no separate postnuptial agreement statute; it is treated as a transaction between spouses under the fiduciary duty in Family Code Section 721.
- Marital settlement agreement (MSA). A written agreement resolving property, support, and custody, submitted to the court as part of a divorce or legal separation judgment. See our MSA guide for what it has to include.
- Separation agreement. Often used interchangeably with an MSA when spouses are living apart and want to formalize terms, whether or not a court case has been filed yet.
When Do You Need Each Type?
Which type applies depends entirely on timing and purpose, not preference:
- Before the wedding, if you want to define how property will be characterized or divided later, a premarital agreement is the only option; once married, that window closes.
- During the marriage, with no divorce in progress, but you want to change how existing or future property is treated, a postnuptial agreement is available, though it faces the closer scrutiny discussed below.
- During a divorce or legal separation case, once you and your spouse have agreed on terms, that agreement becomes a marital settlement agreement submitted for the court to enter as part of the judgment. Our legal separation guide explains how a legal separation case itself works.
- While separated but before or without filing a case, a standalone separation agreement can formalize terms in the meantime, though it generally still needs to be incorporated into a later judgment to be enforced the way a court order is.
Are Marital Agreements Enforceable Without a Lawyer?
It depends on the type. A premarital agreement's spousal support provisions specifically are not enforceable unless the party against whom they are enforced had independent legal counsel at signing. A postnuptial agreement, evaluated under the Section 721 fiduciary standard, can be challenged more easily if one spouse did not have a fair opportunity to understand what they were signing, since spouses owe each other a higher duty of disclosure than parties negotiating at arm's length.
A marital settlement agreement does not legally require a lawyer to be valid; many self-represented spouses complete one, especially in agreed cases. What matters is that it is complete and consistent with Family Code Section 2550, which requires the community estate to be divided equally in a divorce or legal separation unless the parties have a written agreement, like an MSA, providing otherwise. A lawyer becomes more valuable as the property, debt, or disagreement involved grows more complex, but going without one does not by itself make an MSA unenforceable.
Common Mistakes to Avoid
- Confusing a postnuptial agreement with a premarital one; they are evaluated under different legal standards
- Assuming an informal separation agreement is automatically enforceable like a court judgment, without it being incorporated into one
- Leaving spousal support terms in a premarital agreement without independent counsel for both spouses at signing
- Writing an MSA that does not add up to an equal division of community property, without addressing why under Family Code Section 2550
- Treating "marital agreement" as a single form, instead of identifying which of the four types actually fits the situation
Frequently Asked Questions
What is a marital agreement in California?
"Marital agreement" is a general term covering any written contract between spouses about their property or finances. In California, that usually means one of four things: a premarital (prenuptial) agreement signed before marriage, a postnuptial agreement signed during marriage, a marital settlement agreement (MSA) that resolves a divorce or legal separation, or a separation agreement addressing terms while living apart.
What is a marital separation agreement in California, and how is it different from an MSA?
The terms are often used interchangeably, and both generally mean a written agreement resolving property, support, and custody terms between separating spouses. When that agreement is submitted to the court as part of a legal separation or divorce judgment, it is typically called a marital settlement agreement (MSA). Our [dedicated MSA guide](/blog/marital-settlement-agreement-california) covers what has to be included and how to file it.
Can spouses write their own marital settlement agreement without a lawyer?
Yes, many spouses do, particularly in agreed, uncontested cases. Because a court still reviews and enters an MSA as part of a judgment, it needs to be complete and consistent with California's property division rules. A lawyer is not required, but one becomes more useful as the property, debts, or disagreement involved gets more complex.
Is a postnuptial agreement enforceable in California?
It can be, but California does not have a dedicated postnuptial agreement statute the way it does for premarital agreements. Instead, a postnup is evaluated as a transaction between spouses under Family Code Section 721, which requires full disclosure and the highest good faith and fair dealing between spouses, generally resulting in closer scrutiny than a premarital agreement gets.
Does a California court have to divide property equally if there is no agreement?
Generally yes. Family Code Section 2550 requires the community estate to be divided equally in a divorce or legal separation, except where the parties have a written agreement or make an oral stipulation in open court dividing it differently. A marital agreement is one of the main ways spouses change that default equal-division outcome.
Do you need a marital agreement to file for legal separation in California?
No. You can file for legal separation using the same Petition (Form FL-100) used for divorce, without a prior written agreement. A marital settlement agreement typically comes later in the case, once the spouses (or the court) resolve how property, support, and custody will be handled.
How Virdix Helps
Virdix does not draft premarital or postnuptial agreements, since those are private contracts outside the court process. Once a divorce or legal separation case is underway, Virdix does help prepare the Judicial Council forms your case needs, and keeps your answers consistent so the terms in your marital settlement agreement match the rest of your filing.
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This article is for informational purposes only and does not constitute legal advice. Virdix is a document preparation service, not a law firm, and does not provide legal advice. For advice about drafting or reviewing any marital agreement, consult a licensed California family law attorney.
Sources: California Family Code Sections 721, 1610 through 1617, and 2550 (leginfo.legislature.ca.gov), California Courts Self-Help Center (selfhelp.courts.ca.gov)