No one goes into marriage looking for a divorce; however, nearly 50% of marriages today in the US end in divorce. The process of a divorce can be long and complicated, especially when things like kids, estates, and business ownership are tied into the marriage. Even though they are not always looked upon in the best light, a prenuptial agreement can help protect you and your assets should you and your partner decide a divorce is necessary.
What Is A Prenuptial Agreement?
A prenuptial agreement (commonly called a prenup) is a legally binding document which will be used to divide any debts or assets in the event a couple divorces. The prenup can cover any assets or property an individual brought into the marriage as well as any assets which were acquired through the course of the marriage. In the absence of a prenup, the process of dividing this property may be long and arduous.
One aspect a couple cannot include in a prenuptial agreement is anything dealing with child custody or child support. In California, the courts will make all decisions related to custody and child support based on the best interest of the children. This means a couple cannot agree on custody of current or future children or the amount of child support. However, it can include specific measures which provide for additional payments like covering a child’s college tuition or supporting an adult child.
One aspect a couple cannot include in a prenuptial agreement is anything dealing with child custody or child support. In California the courts will make all decisions related to custody and child support based on the best interest of the children.
Why Would I Need A Prenup?
Again, while no one expects a divorce, having a prenuptial agreement can be helpful in many circumstances. Some reasons you may want a prenup include:
- If you have been married before
- Either you or your partner has children
- There is a wide disparity in wealth
- Either person are small business owners
If you find yourself in one of these situations, you may want to protect yourself, your property, and your intentions in the event of a divorce. If either or both of you have been married before, you may have assets you have carried over into your current relationship, like property. If one or both of you have children from a previous relationship, you may decide to keep any child support separate. A prenup can also act as a way to protect where your inheritance will go in the event you pass away.
Another reason to sign a prenup would be if there is a large disparity in the wealth of the couple. For example, if one person is much wealthier they may want to protect their current and future earnings in the case of divorce. This also applies if one spouse carries a lot of debt. Without a prenup the spouse without debt could be on the hook for paying off any debt accrued by their partner. Finally, in terms of wealth, if one person does not work the couple may agree to allow for the working spouse to financially support the other.
Lastly, if either person is a small business owner a prenuptial agreement can protect your business. This can be especially important as a business owner may have investments with outside people, a business partnership, or you own a family business or a business which relies on your image. Without a prenup, a divorcing couple may be forced to divide the businesses in a manner which is not beneficial for the company.
A prenup can also act as a way to protect where your inheritance will go in the event you pass away.
What Laws Govern Prenuptial Agreements?
California law has a few stipulations which need to be followed in order for a prenup to be legal. When creating a prenup, it is best for each person to hire a lawyer to represent them as both partners bring different assets and will want to protect different priorities. Ever since the Uniform Prenuptial Agreement Act (UPAA) became law in 1986, any prenuptial agreements become effective once the couple marries. In a 2002 amendment to the UPAA, a prenup is only valid if certain aspects are met when the prenup is signed.
To make sure your prenup is valid, there are a number of things you will need to take into consideration. Be aware that prenuptial agreements are governed by contract law so there are three considerations which must be followed. First, a prenup is only valid if both parties are represented by independent legal council, unless one party waives their right to independent council. Also, if one person does not speak or understand English, the agreement itself must be translated into a language which can be understood by that person. Finally, another aspect of contract law states that the agreement is not legal if there was unequal bargaining power or the agreement itself unfairly favors one person.
In addition to the contract law provisions, there are also a number of prenuptial agreement provisions which are required for a prenup to be enforceable. Both partners must have full and complete information about each person’s finances and assets. Also, the agreement must be signed more than 7 days after the final agreement has been sent to each party. This provision is meant to allow for enough time for each person’s lawyer to review the document. Each person must receive full disclosure of all parts of the agreement including any terms and conditions. Finally, if one party has waived their right to an independent attorney, that person must also sign a document which states they understand any of the consequences of their decision.
What Can Be Included In A Prenup?
There are a number of areas which may be agreed upon in a prenup. One person may waive or alter their rights to spousal support. Even if all of the previously mentioned conditions are met, the courts may still not enforce a spouse’s right to waive support. This could be due to many issues but the law specifically mentions that if the prenup would be unconscionable they will not enforce the agreement. As the law only says “unconscionable” there are varying degrees of enforcement. Some variables which are used during enforcement include education level, property ownership, monetary or financial independence, among other variables.
You may also change the nature of how to divide any property. There are two types of property which can be divided, community and separate. Separate property is any property which is one person’s individual property brought into the marriage or specifically owned by that one person. Community property, on the other hand, is any property or income which was acquired during the marriage. As mentioned above, a prenup is also where you would create any provisions needed in regards to business ownership.
A prenup may also include any rights to inheritance. This may be needed if a spouse has previous children and they want to guarantee their children will still receive any inheritance to which they were entitled before the marriage.
What Cannot Be Included In A Prenup?
Remember that any part of the prenuptial agreement may not impact any minor children in a negative way. The court will always make sure they take a child’s rights into consideration and make a decision which will act in the best interest of the child. In California, you are not allowed to consider any faults when awarding agreements. This means there can be no penalty for a person who may become unfaithful during the marriage or whose actions may lead to the divorce. Finally, no part of the prenup may violate or contradict any law or policy.
Protect Your Property & Interests With A Prenuptial Agreement
Are you looking to get married? Do you have certain interests and property you would like to protect in the event of a divorce? Torrance family law attorney Bruce A. Mandel’s team can help you craft a prenuptial agreement which will protect you and your interests. We can help you decide exactly what you need, work with you to create an appropriate agreement, and represent you in the event you would like a prenuptial agreement. For more information please give us a call at (424) 250-9130 or visit our contact page.