Prenuptial 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.
If you believe that a premarital agreement may be beneficial in your personal situation and are interested in learning more about such an agreement do not hesitate to contact our Santa Rosa family law attorney office.
Our firm can assist you in determining what type of agreement is best for your situation and help make the appropriate arrangements to protect your rights. For a free consultation call Beck Law P.C. at 707-576-7175 or contact us online
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Benefits and Drawbacks of a Premarital Agreement