Finding the right person and getting married is a dream for many. After getting engaged, the next step is usually planning the big day. During this time, you are not thinking of the demise of your relationship.
Unfortunately, divorce rates make it almost impossible not to wonder what would happen if your marriage fails. More and more people are looking at securing and protecting themselves and their assets if a marriage does not prevail. That is where the prenuptial agreement comes in.
A prenuptial agreement, also known in short as a prenup, is a premarital agreement that two individuals enter into before marriage. A prenup is essentially a contract that defines and outlines what happens when a marriage ends. The two parties sign it after they agree on the terms of the agreement.
Do You Need A Prenup?
Whether or not you need a prenup will depend on several factors. If you have property and assets, you may want to look at getting a prenuptial agreement. Where you live may also be a factor. Whether you have little or many assets, a prenup may be a safe bet if you are looking at safeguarding what is yours and protecting your rights as a soon-to-be spouse.
If you live in a community property state like California, a premarital agreement may be a good idea. Community property states require that divorced couples shall split all property and assets attained during marriage evenly. You and your future spouse may agree that this is not best for the two of you. You may use a premarital agreement to divide property assets as you and your partner deem fit, unlike what the law states.
What Are The Legal Requirements In California?
California uses the Uniform Premarital Agreement Act (UPAA) as the legal standard. By law, a premarital agreement comes into effect as soon as the couple is married. The UPAA outlines the different requirements that render the contract legal and binding.
As in regular contract law, the two parties must consent and be of sound mind for this agreement to be binding. The parties must sign voluntarily and without any inclination of fraud, intimidation, duress, or coercion.
Additionally, the statute states that each party must have ample time to review the document. Parties, for example, are given at least seven days to obtain legal counsel if need be to help review the document.
Besides the legal requirements concerning signatures, the law also prohibits certain matters from being included in the agreement. For example, a prenuptial agreement cannot determine child support and child custody matters that go against the child’s best interest and any court order. The law and judge’s order will always supersede any clause regarding children.
A premarital agreement also may not include any clause that demands or punishes a spouse for any issues or actions that may have or have not occurred during the marriage. For example, the agreement cannot require that a spouse perform certain things or behave in certain ways.
What Can Be Included In A Premarital Agreement?
A prenup, under California law, can include matters and issues that arise during marriage, during the dissolution of marriage, and even after the dissolution of marriage.
There is no one size fits all agreement. A premarital agreement is as inclusive or exclusive for all intents and purposes as the two parties agree. However, there are specific provisions that parties should be included in a prenup.
A prenuptial agreement, for example, should include clauses regarding assets, property, and debt. The agreement must identify both marital and separate property and how the couple wants to divide them at the end of the marriage. The document should also mention children, especially those from previous relationships, which the law may not protect.
A premarital agreement essentially lays out the framework of who gets what at the end of the relationship. As long as the contract conforms with the law as it stands, the agreement allows the parties to make clear how they want to proceed upon dissolution of marriage.
Prenuptial Agreements In California, The Bottom Line
No one thinks about divorce when they are about to get married. These days, however, it is better to play on the side of caution when you are entering into a marriage. A prenuptial agreement is a perfect tool to help protect you and solidify your assets.
If you are considering a prenuptial agreement or have one to sign, it is best to have an attorney. Not hiring an attorney to help review the document can mean a loss of what is rightfully yours. Torrance-based family law attorney Bruce A. Mandel can guide you through the process. Follow him on Facebook or contact him today for more information.
