If 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.
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.