Prenuptial & Postnuptial Agreements
Bruce A. Mandel Has Over 2 Decades Of Experience In Helping Clients Protect Their Assets Via Pre and Postnuptial Agreements
Bruce A. Mandel works with couples before or after they marry to create a prenuptial (or post-nuptial) agreement to establish the terms of a settlement in the event the couple decides to divorce or legally separate. While not always looked upon favorably, in the US today 50% of marriages end in divorce. A prenup is a practical way to predetermine a divorce settlement before a divorce occurs. These agreements are particularly important when one or both individuals have large estates, previous families, or the couple’s assets are wide and diverse. In the absence of a prenup, the process of dividing this property may be long and stressful.
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 decides to divorce. This may cover assets or debts brought into the marriage and any assets or debts which were acquired during the course of a marriage. However, be aware that the State of California has strict guidelines for child custody and child support.
California law has strict stipulations on both the contents and the procedures of creating and signing a prenup. In 1986, California signed into law the Uniform Prenuptial Agreement Act (UPAA). The original format of the law states that any prenuptial agreement becomes valid immediately after the couple marries. This statute was amended in 2002 to include other provisions which validate a prenup only if certain conditions are met throughout the prenup process.
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 decides to divorce. This may cover assets or debts brought into the marriage and any assets or debts which were acquired during the course of a marriage.
California Law And Prenuptial Agreements
In order for a prenuptial agreement to be valid in the State of California, the following areas must be met. First, prenups are legally binding contracts. This means each prenup must follow three areas of contract law. These three elements are there to protect both parties and include the following provisions:
- Both parties are represented by independent legal counsel, unless one person agrees to waive their right to independent counsel.
- If one, or both, parties do not speak English, the contract (prenuptial agreement in this case) must be translated into a language which can be understood by each party.
- The contract is not valid if one party has unequal bargaining power or the contract unfairly favors one party.
In addition to the contract law provisions, there are specific prenuptial agreement provisions which are required for a prenup to be enforceable in California. These provisions include:
- Each partner must have full and complete information about the other partner’s financials.
- The prenuptial agreement must be signed no earlier than 7 days after the final agreement has been sent to each partner.
- Each person must receive a full and complete disclosure of all terms and conditions of the prenup agreement.
- If one party waived their right to independent counsel, that person must sign a document which states they understand any consequences of their decision. The person who discussed any potential consequences with the partner waiving their right to independent counsel must also sign.
Importance Of Having Independent Counsel
Throughout a relationship there are always some areas of your life which you want and need to protect. This can include a wide range of assets such as land, finances, business ownership, and more. As mentioned above, having independent counsel is an important part of contract law. Independent counsel means you hire, and are represented by, your own attorney and that same attorney is not also hired by your partner. The independent counsel provisions are there to make sure you are represented by someone looking out for your own interests. Hiring independent counsel is an essential part of making sure you can protect what you want most.
Why Do I Need A Prenuptial Agreement?
A prenup can be a beneficial agreement, especially if:
- Either person has been married previously.
- Either person has children from a previous relationship.
- There is a large disparity in wealth.
- Either person is a business owner.
- There are wide and diverse assets brought into the marriage.
If you find yourself in one of these situations, a prenuptial agreement will help protect, you, your assets, and your ideals in the event of a divorce or legal separation.
If either person has been married previously, a prenup can help sort out and keep separate certain areas of that previous relationship. If one individual has previous child support or spousal support, a prenup can keep that separate from the current relationship. Also, some assets like property or land may be protected in the terms of the prenup. If there are children from previous relationships a prenup for the current marriage may be used to protect where you would like your inheritance to go. While a last will and testament is one way to protect your inheritance, a prenup can add additional clarification and support for your wishes.
If there is a wide disparity of wealth between the couple a prenuptial agreement would be good. For example, if one person is much wealthier they may want to protect their current and future earnings in the case of divorce. If one person does not work the couple may agree to allow for the working spouse to financially support the other. 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.
If either person is a small business owner or if one or both partners bring a wide and diverse asset portfolio, a prenuptial agreement can protect you and your assets. This can be especially important as a business owner may have investments with outside parties, a business partnership, or you own a family business or a business which relies on your image. Without a prenup a couple may be forced to divide their assets in a manner which is not beneficial for either party.
If there is a wide disparity of wealth between the couple a prenuptial agreement would be good. For example, if one person is much wealthier they may want to protect their current and future earnings in the case of divorce.
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. However, even if all of the previously mentioned conditions are met and the prenuptial agreement is valid, the courts may still not enforce a spouse’s right to waive support. If the previously agreed upon prenup is “unconscionable” the courts may not enforce those provisions. This could be due to many issues as the law only gives the wording, “unconscionable.” This leaves a wide area of interpretation up to the court which in turn leaves varying degrees of enforcement. Some areas the courts will take into consideration when deciding whether the provisions are “unconscionable” includes education level, property ownership, monetary or financial independence, amongst other variables.
A prenup may also establish the nature of how you wish to divide any property. In California, there are two types of property, 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. You will also decide on how you will want to deal with business ownership and other assets such as stocks, investments, land, houses, etc.
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. As mentioned below, there are some areas which cannot be included in a prenuptial agreement and some inheritance rights may be excluded from a prenup due to the nature of the inheritance.
What Cannot Be Included In A Prenup?
While a prenup may protect many areas of your life, California law has placed restrictions on some areas which may not be included in a prenup. Most importantly, a prenuptial agreement may not impact any minor children in a negative way. The California courts 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.
Also, California laws states 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.
As mentioned above, prenuptial agreements are governed by contract law and the Uniform Prenuptial Agreement Act. No part of the prenuptial agreement may violate or contradict any law or policy.
…a prenuptial agreement may not impact any minor children in a negative way. The California courts 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.
Hire An Experienced California Family Law Attorney Before Entering Into A Prenuptial or Postnuptial 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?
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.