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Prenuptial Agreements In California: What Is A Prenup Agreement & When Should You Have One
What is a prenuptial agreement? Why is a prenuptial/premarital agreement necessary? Prenups are a confusing (and sometimes stressful) topic. Marriage is supposed to be forever, isn’t it? The unfortunate reality is that more than 50 percent of marriages in California end in divorce. Since California is a community property state, if you get a divorce, the judge will order an equitable distribution of property. Without a prenuptial agreement, the personal and financial assets you had before to the marriage could be included in that distribution.
What Is A Prenup Agreement?
Prenuptial agreements, also called premarital or antenuptial agreements, are contracts between two people that are getting married. These agreements usually outline issues pertaining to the parties’ property and income during the marriage, after the marriage (if it ends in divorce) and after the death of one or both spouses. Premarital agreements can also address nonfinancial issues, like the religious upbringing of their children. The issue of child support if the couple gets a’ divorce cannot, however, be resolved in a prenuptial agreement. Also, a court generally will not enforce insignificant nonfinancial details in a premarital agreement.
Couples who have been married before tend to have premarital agreements more often than couples who are getting married for the first time. Prenuptial agreements are also commonly used when one person brings significantly greater financial assets into the marriage. Often, a premarital agreement is used as a way for spouses to ensure that their children from a previous marriage receive a substantial portion of their parent’s assets when they die or if they get divorced.
A prenup agreement may be unenforceable or voidable if either party has withheld important financial information or coerced the other party into signing the agreement, or if the terms are so unjust that, if put into effect, one party would be left with very little. Before entering into the agreement, both parties must fully disclose their assets, income and liabilities to the other, and they must enter into the agreement in good faith. In order to ensure that a premarital agreement will be enforceable, it is important for both future spouses to be represented by separate legal counsel-who can advise them on their rights and responsibilities. In fact, some states’ laws require that each party be represented by a separate attorney for a prenuptial agreement to be valid.
State statutes on premarital agreements may vary slightly, but many states have adopted a version of the Uniform Premarital Agreement Act. It is important when entering into a premarital agreement that you make sure the contract terms comply with the applicable statutes. A lawyer who has experience with prenuptial agreements will help. If the agreement complies, it will be enforceable and, if contested by one spouse, upheld by the court. Courts will not uphold premarital agreements if they violate public policy, such as by promoting divorce. If, for instance, an agreement provides that one spouse will receive better financial treatment after the divorce than he or she does during the marriage, the court may determine that the agreement encourages divorce and disregards public policy favoring marriage. If that is the case, the court may refuse to enforce the agreement’s terms.
Premarital agreements are different from separation agreements. Separation agreements are entered into after marriage; and describe the conditions that apply to the parties’ separation. Separation agreements are often entered into when a couple is thinking about getting a divorce; Premarital agreements are entered into when people plan to get married. In some situations, courts may enforce postmarital, or postnuptial agreements, which are usually subject to many of the same requirements as premarital agreements.
Make Sure Your Financial Interests Are Protected
It is important to protect the personal assets you have before you get married. A prenuptial/premarital agreement can help protect your:
- Investments and bank accounts
- Pension, 401(k)
- Professional practice
- Personal property and any other financial assets
Talk To A Family Lawyer With Extensive Prenuptial Agreement Experience
Do you need help deciding whether you should get a prenuptial agreement? If so you should find a prenuptial agreement lawyer to talk to about your situation. Feinberg & Waller, APC has years of experience helping people in Southern California draft prenuptial agreements. Our lead attorney in our Calabasas family law office, Marshall Waller, is a Certified Family Law Specialist with an AV* rating from Martindale-Hubbell. He leads our team of divorce and family attorneys who know what makes a premarital agreement such an effective legal tool.
We have the experience and skills to draft solid prenuptial agreements. A valid prenuptial agreement should:
- Be drafted and signed well in advance of the marriage
- Include detailed descriptions of specific property assets and financial holdings and earnings derived from those holdings
- Be drafted and signed by both parties individually, each having their own legal counsel
- Include a termination date, when specific provisions no longer will be in effect
- Never be drafted or signed under duress or pressure by either party
- Include detailed language specific to the parties’ interests
- Include other provisions as needed