While no one walks down the aisle with the intent to divorce. However, there are many reasons as to why a couple should consider acquiring a prenuptial or premarital agreement. The main purpose of a prenuptial agreement is to pre-determine how the division of property should be divided amongst the spouses in the event that marriage ends. The prenuptial agreement can also pre-determine how much spousal support should be provided as well.
Prenuptial Agreements Are For All Ages and Incomes
There’s a common misconception that only the wealthy should sign a pre-nup. Prenuptial agreements are important for anyone entering a marriage regardless of age and income especially since California is a Community Property State. As the couple gets older, more and more assets are acquired during the marriage including property and debt. A prenuptial agreement will make the divorce process easier as the terms will be already outlined. If you are entering a second marriage, a prenuptial agreement is also important to protect any prior assets you acquired during your first marriage. Established business owners should also consider having a premarital agreement to protect their business assets.
Which Assets Are Protected By A Prenuptial Agreement?
Although assets purchased before the marriage are usually retained by their rightful owner during a divorce, any assets that are used jointly will be considered community property. For example, let’s say the husband owns a house prior to the marriage and the wife moves in once married. However, the wife contributes regularly to the mortgage during the marriage. In the event that the couple gets divorced, the wife might be able to claim interest in the house. A prenuptial agreement could avoid this by clearly defining that the house will go to the husband in the event of a marriage dissolution.
Issues that a prenuptial agreement can include are:
- the right to make a will or trust
- the rights regarding spousal support
- the “choice of law” regarding the agreement (including which state’s law will be applied to the agreement)
- property rights including obligations to the property, the right to buy, sell exchange and manage property, and who owns the property after separation
It’s also important to note that California law forbids child support to be pre-determined. This cannot be included in any pre-marital agreement. The court will always favor for what is in the best interest of the child and whatever you might think before the marriage might not be applicable in the future.
Prenuptial Agreements Are Complex
A random verbal agreement between the two parties before marriage is not valid to be considered a premarital agreement. In order for the agreement to be valid the following requirements must be met:
- The agreement is a contract signed by both parties and by a Notary Public
- The final draft of the agreement but given to both parties 7 days prior to signing
- It must be signed before the legal marriage occurs
- Each party much provide their finances including income, assets and debts and then sign a waiver of disclosure
- Each party much be represented by an attorney
- The agreement must not be secured by fraud, deceit, coercion or duress
Even if the agreement is still considered valid, a family court judge has to overrule during the divorce process according to family code 1615. The agreement can be overruled if the judge feels that it was not executed voluntarily by both parties, if one of the parties was under duress, a full disclosure of assets was not accurately provided to both parties, they were not represented by attorneys or not fully informed of their rights.
Contact Our Prenuptial Agreement Attorneys
If you are interested in crafting a prenuptial agreement before you get married then contact one of our family law lawyers who are familiar with the complexity of crafting such an agreement. We will make sure that your agreement is valid and will withstand in the event of a dissolution of marriage. Or, if you need help fighting a prenuptial agreement because you believe they have been made under false pretenses, we can assist you in having the agreement be examined by a family court judge.