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Benefits and Drawbacks of a Premarital Agreement

couple_walking.jpgDoes a prenuptial agreement before marriage mean a kinder divorce? Many couples think so, which is why they enter into a signed mutual agreement beforehand. Often these couples have been divorced once before, and are aware of the pitfalls. But does a prenuptial agreement always ensure that the worst aspects of divorce — painful fights over assets and child custody — will be avoided? A Family Law Practice Overview can help you understand the benefits and drawbacks of a premarital agreement, and which would be right for you.

What is a Premarital Agreement?

It is a written agreement signed by both members of the couple before marriage. In California, prenuptial agreements are called premarital agreements and are governed by the Uniform Premarital Agreement Act. It requires that (i) both members of the couple fully disclose their financial situation; (ii) both members of the couple fully understand the terms of the agreement; (iii) both sign voluntarily; (iv) the agreement was created in a timely manner; and (v) that the terms of the agreement are fair.

The premarital agreement can determine how any financial asset — such as house, cars, and income — is divided in the event of a divorce. It is not used to dictate relations during the marriage (such as household chores).

Benefits of a Premarital Agreement

Couples who enter a premarital agreement often have significant assets and children from a previous marriage. They want these assets to pass to their children. Since California is a community property state, sometimes when one spouse’s separate property is used for the family, it becomes community property. This property is then split between the two spouses in a divorce, depriving one spouse’s children of their full inheritance. A premarital agreement makes it clear that certain assets must remain separate property.

Another benefit is that the tension and anger of fighting over assets is largely avoided. That can be especially beneficial for the children. Also, if you and your spouse know that one of you will stay home and raise the children, a premarital agreement can ensure that the stay-at-home spouse gets spousal support in a divorce.


Drawbacks of an Agreement

The drawbacks are that premarital agreements do not govern issues of child support and child custody. Since those are two of the most contentious issues, that means a premarital agreement does not guarantee the divorce will be peaceful. At the same time, since spouses usually cannot predict who would be the more financially stable or the fitter parent, it can also be a benefit. No one would benefit from being locked into an agreement that awards custody to an unfit spouse.

Another obvious drawback is that it could create feelings of resentment and mistrust between a couple before marriage — even if both see a premarital agreement as a purely practical step. For instance, if one member of the couple earns much more than the other, the other might feel treated like a “gold digger,” like he or she was only marrying for money. The resulting tension could color their marriage.

What if I Want to Change the Agreement?

You can alter the agreement at any time during the marriage as long as it is mutual, in writing, and you follow a similar procedure to the one you used to enter the premarital agreement initially.

Family Law Practice Overview is located in Santa Rosa and offers an entire scope of divorce services to clients in Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, Kelseyville and throughout Sonoma, Mendocino and Lake County.

Beck Law P.C. offers a no cost, no obligation initial consultation and can furnish the experience and knowledge to help guide you as you come to the decision to divorce or not divorce.

Making an appointment to meet with us is not a decision to file for divorce. It is merely an investment in exploring what options may or may not apply to your particular situation. Your visit to the Beck Law Offices is confidential, as is the information discussed. You can contact our office at 707-576-7175 or contact us online.

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