Articles Posted in Prenuptial agreement

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prenuptial agreementIf you are considering getting married, you may be tossing around the idea of having a prenuptial agreement (prenup) made. What exactly are these documents, and is such an agreement the right thing for you? If you are not sure, an experienced family law attorney can answer your questions.

Prenuptial Agreement – The Basics

In California, the Uniform Premarital Agreement Act defines prenups, otherwise referred to as premarital agreements. Essentially, they are documents (never simply oral agreements) that take effect once the couple is married. They contain a broad definition of property (basically anything of value), and lay out financial guidelines for the couple. In the event of a divorce, a prenup may spell out requirements for spousal support, but these specifications may not play out as expected.

Spousal Support

Although a couple may agree to the particulars of spousal support when they are engaged, circumstances may be quite different at the time of a divorce. Therefore, these provisions may not be followed as written. Factors impacting the enforceability of spousal support provisions include:

  • Whether or not the recipient of spousal support had independent counsel at the time the agreement was drafted;
  • Whether the financial status of the person expected to pay spousal support is significantly higher or lower than it was at the time the document was drafted.

What is NOT in a Prenuptial Agreement

Prenuptial agreements are not intended to deal with the responsibilities of the parties during the marriage. You will not find expectations related to household duties or sexual activity in these documents. Nor can parties spell out consequences for adultery. Furthermore, prenuptial agreements may not address issues related to children such as custody, visitation, or child support following the dissolution of a marriage.

Common Prenuptial Agreement Mistakes Couples Make

Couples dealing with premarital agreements frequently make a number of easily avoidable mistakes. You can avoid headaches by circumventing the problems that sink some couples who are investigating such a contract:

  • Refusing to discuss having a prenup because it is awkward: Get used to facing difficult conversations now. Talking about it is the only way to come to consensus;
  • Sharing an attorney: Each person should have his or her own representation in these situations;
  • Giving in to concessions that make you uncomfortable: Do not drop an issue just because you want to get the whole thing over with. Stick to your guns and make sure the agreement reflects your wishes.
  • Letting emotions dictate your behavior: This is a business transaction like any other. Think it through, and make logical, calm decisions.

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Prenuptial AgreementWhen a couple makes the decision to get married, divorce generally is not an issue that is on their minds. That is why a prenuptial agreement may seem like a taboo topic for a couple in this position to discuss. However, a couple should not think of a prenuptial agreement as planning for the end of their relationship. Instead, it is simply a contract that both spouses enter into prior to marriage.

The main purpose of a prenuptial agreement is to establish property rights. While prenups are often thought of in the context of wealthy individuals, they have other purposes as well. One of the most common is to protect a family business. Other potential uses of a prenuptial agreement include clarifying financial rights, determining how property will be deal with if one spouse passes away or protecting one spouse from assuming the existing debt of the other. This contract is generally also a guaranteed way to avoid a long and expensive divorce process.

Are Prenuptial Agreements Valid in California?

Once people understand more about the true nature of this type of agreement, they often want to know if it is something that is valid in the state of California. The answer to that question is yes. And for couples who do not have a prenuptial agreement, state law will determine how property is divided if marriage ends in a divorce. This means that property, as well as other assets and debt, will be split in a way that neither spouse will have as much control over as they would probably like.

Can You Get a Prenuptial Agreement After a Wedding?

As previously mentioned, the most common reason that couples who are planning to get married are hesitant to visit a family law attorney in Northern California to discuss a prenuptial agreement is they think it will create negative feelings about their wedding. But even if a couple is not worried about that aspect of a prenuptial agreement, they may not be at a point where they can make fully informed decisions about this type of contract.

Making legally binding decisions about property and other assets after a wedding can be done through a postnuptial agreement. This document can be created at any time after a couple is married. Not only does a postnuptial agreement have many similarities to a prenuptial one, but it may even be able to address a greater number of topics. For example, if a couple accumulates assets together, a postnuptial agreement can be used to designate a specific split instead of having it labeled as community property by the state.

With both prenuptial and postnuptial agreements, it is important for documents to be created properly. Any mistakes with an agreement can result in part or all of it being thrown out in the event it is ever put in front of a judge. Continue reading →

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Prenuptial Agreement.jpgPrenuptial agreements, or premarital agreements as they may also be called, are contracts entered into before a marriage to establish the property rights of each spouse in the event of a divorce. A prenuptial agreement is most common where one or both spouses are wealthy, but they can also be used to protect a family business or to serve other important functions. For example, prenuptial agreements can protect a party from assuming the debts of the other party, determine how property will be passed upon death, clarify financial rights and responsibilities during a marriage or avoid long, costly disputes during divorce proceedings.
Without a prenuptial agreement, California law determines how property is divided during marriage and after a marriage ends. Generally, a spouse is entitled to share and receive ownership of property acquired during the marriage, receive some of your property upon death, share in any debts acquired during the marriage, and share in the responsibilities in managing property acquired during the marriage.
The decision to enter into a prenuptial agreement is one that every couple should make individually, as every situation is unique. Many couples fear that discussing a prenuptial agreement, or the issues that the prenuptial agreement will cover, may cause problems in the relationship. However, often the opposite is true. One of the main reasons couples divorce is finances, and a prenuptial agreement will allow a couple to discuss those issues prior to marrying.
There are some downsides to a prenuptial agreement. Depending on your relationship, it may take some of the romance and excitement out of the wedding and its preparation. Sometimes, the beginning of a marriage is not the appropriate time to discuss prenuptial agreement issues because you and your future spouse may not know enough about your life together to answer the questions required. If that is the case, you can always wait until you are married, when you know more about how you and your spouse intend to manage your household and its finances before discussing what is referred to as a postnuptial agreement.
Like many contracts, a prenuptial agreement must be in writing and signed by both parties. In addition, if a spouse is pressured into signing the agreement, or if they were not provided enough time to read and consider the agreement, a court may find the agreement invalid.
Prenuptial agreements cannot address everything; courts will invalidate certain portions if they do not comply with current California law. A prenuptial agreement may not contain any decisions regarding child support or child custody, because the court has final say in determining proper child support and the child’s best interests. In addition, a spouse cannot waive his or her right to alimony, which is one of the most frequent provisions struck down by courts. The prenuptial agreement cannot include personal preferences, such as who does each chore, where holidays are spent, or what school the children will attend, because a prenuptial agreement is primarily intended to address financial issues, and judges do not like to interfere in private domestic matters.
In any case where future spouses are considering a prenuptial agreement, each person should acquire their own legal counsel, to ensure that the agreement is fair to both parties and to reduce the chances of any impropriety.

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Prenup.jpgPrenuptial agreements commonly make the news when a celebrity is getting married. It is often assumed that celebrities of great wealth have such an agreement in place prior to their wedding, and speculation is generally made on the details of the possible agreement. For example, just this summer mandy many news outlets including CBS MoneyWatch, debated what Facebook founder Mark Zuckerburg may have done in terms of a pre-nuptial agreement prior to his wedding to Priscilla Chan. Although no details have been made public about any agreement that may be in place, it hasn’t stopped mass speculation about how Zuckerburg has protected his fortune in the event of a separation.

Although these types of agreements are common in the world of wealthy celebrities, are they needed for “everyday” couples? Our Northern California family law attorney believes that in order to determine if an agreement like this is appropriate for your situation it is best to know some basic facts about them.

What is a California Premarital Agreement?

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