Prenuptial agreements are becoming more popular as more couples go into marriage wanting to protect their own assets in the case of divorce. As unromantic as it may sound, it can be pragmatic for couples who have assets, children, and businesses of their own, allowing them to clearly communicate their expectations for the future.
What Is A Prenuptial Agreement?
A prenuptial agreement is a legally binding contract signed by both individuals before they get married. It allows them to set out their financial responsibilities and designate how their assets and debt will be divided should the marriage end in divorce or the death of one spouse. While nobody ever wants to think of these things, especially before the big day, there are many reasons why being proactive is a good idea.
In most modern marriages, spouses come into the union with their own financial life — their own property, retirement accounts, businesses, money, and debt. Many times, they come into the marriage with children from other relationships and want to ensure that they are provided for in case of their death.
Or they come into the relationship with debt that they don’t want to burden their new spouse with. Prenuptial agreements make provisions for what happens to these assets and debt should the couple divorce or one spouse die.
What Can And Can’t Be Included In A Prenup?
The state of California sets out clear guidelines for prenuptial agreements, and going outside those guidelines can render your agreement invalid. Prenups are designed for financial matters, so the court may consider anything outside of financial concerns frivolous and unenforceable.
A prenuptial agreement in CA can deal with matters concerning
- Community property
- Separate property
- Division of debt
- Spousal support
- Stipulations on how a divorce will be resolved
Things that a prenup cannot enforce include
- Child support
- Child custody
- Any terms that encourage divorce
- Any terms that impose obligations on one spouse during the marriage
- Any terms encouraging illegal actions
Understanding California State Law Regarding Prenuptial Agreements
In order for a prenuptial agreement to be enforceable in California, it has to conform to our Uniform Premarital Agreement Act and comply with the requirements set out in it.
These include
- Full financial disclosure and understanding of both individual’s assets and liabilities
- A review period of seven days before execution, during which both individuals can have it reviewed by their attorneys
- A Written Statement of Waiver If one or both individuals choose not to have it reviewed by independent counsel
- Representation by a California family law attorney if spousal support has been waived or modified
Are California Prenuptial Agreements Ironclad?
Prenups are not always held up in court. Spouses have fiduciary duties toward each other, meaning they must be fair and not take advantage of the other. When one spouse has not abided by that duty to the other, or the rules of law have not been adhered to, the prenup can be declared invalid and nonbinding.
A prenuptial agreement can be voided if it
- Is fraudulent, and one partner has not fully disclosed all assets and liabilities
- Has been coerced, and one individual was pressured by the other
- Is considered grossly unfair to one party or unconscionable
- Lacks legal capacity, and one individual did not have the legal capacity to enter into a contract
- Limits spousal support without legal representation
- Has illegal purposes
- Involves one party who isn’t fluent in English, who may not have understood the terms of the agreement
- Promotes divorce
- Includes matter of child custody or support
- Includes matters of personal behavior
While a prenup can be drafted without an attorney, to ensure its fairness and enforceability, it is important to have it reviewed by an experienced attorney. Without proper legal guidance, you may risk not understanding the legal implications of what you are signing or having it invalidated at the time of a divorce or death.
The Importance of Getting The Guidance Of An Experienced Family Law Attorney
There are important pros and cons and legal criteria to consider when crafting a legally enforceable prenuptial agreement. If you and your future spouse are considering a prenuptial agreement, or if you are planning to challenge an existing prenup in California, getting skilled legal assistance is critical.
Bruce A. Mandel has over three decades of dedicated commitment to families and their unique needs. Call (424) 250-9130 to schedule a confidential consultation or contact Bruce through his online contact form. Learn more about Bruce and his services on his Facebook page.
