Prenuptial Agreements: What You Need to Know

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In the whirlwind of wedding planning and excitement, the conversation about prenuptial agreements can seem like a dampener. However, understanding prenups is not only prudent but can also be essential for financial security and peace of mind.

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Prenups are becoming increasingly common for couples in the United States, not just for the wealthy but also for those with limited financial resources. Couples across the country are deciding that it is important to set their own terms surrounding the legal contract of marriage to help ensure fairness and peace of mind.

By arming yourself with the basic knowledge about prenuptial agreements, you will be better positioned to consider if a prenup could benefit your marriage and protect your future.

Whether you’re considering tying the knot or already engaged, it’s crucial to grasp the ins and outs of prenuptial agreements in the Golden State.

While this guide will provide you with a broad understanding of prenuptial agreements, be sure to consult a family law attorney to understand the particulars of your case.

What is a Prenuptial Agreement?

A prenuptial agreement, often referred to as a prenup, is a legal contract made between two individuals before marriage. It can outline the division of assets, debts, spousal support, and other financial matters in the event of divorce or death.

While prenups were once associated mainly with the wealthy , they have become increasingly common and helpful among couples of all financial backgrounds.

Why Consider Prenuptial Agreements?

Contrary to popular belief, prenuptial agreements aren’t just for those with substantial financial resources or those anticipating divorce. They offer numerous benefits for any couples entering into marriage, including:

• Asset protection: Prenups allow individuals to protect their premarital assets, such as businesses, investments, and real estate, ensuring they remain separate property in the event of divorce.

• Debt management: Couples can decide how to handle debts acquired before and during the marriage, protecting one spouse from assuming the other’s liabilities.

• Spousal support: Spousal support obligations may be agreed upon through a prenup, potentially modifying or eliminating an obligation for spousal support if the marriage dissolves. However, if a prenup is found by the court to be unfair, it is possible that the court may not waive a spouse’s right to support. We recommend you consult a prenuptial agreement lawyer in Los Angeles to understand what constitutes ‘unfairness’ in more detail.

• Inheritance: If you expect to receive an inheritance, a prenup can protect your inheritance if the marriage dissolves. Even if an inherited asset is considered separate property, it can still be used to pay spousal support, child support, or even the fees for your spouse’s attorney. A prenup can state that inheritance will not be considered when determining spousal support or legal fees.

• Clarity and certainty: By outlining financial expectations and responsibilities upfront, prenuptial agreements can help avoid misunderstandings and conflicts down the road. Moreover, with both parties aware of the financial plan in case of divorce, a prenup may help prevent couples from staying together for the wrong reasons, such as a fear of financial uncertainty.

• Preserving family wealth: Individuals with inheritances or family wealth can use prenups to ensure those assets remain within the family in the event of divorce or death.

• Protecting business interests: Business owners can safeguard their enterprises by stipulating how business assets and interests will be handled in the event of divorce or dissolution.

A Prenup may sound awkward but it can save time, money and bitterness in the case of divorce.

Prenuptial Agreements in California: What You Need to Know

California has specific laws governing prenuptial agreements, and understanding these laws is crucial for drafting a valid and enforceable document. Here are key aspects to consider:

1. Full Financial Disclosure

California law requires both parties to fully and transparently disclose their assets, debts, income, and liabilities before signing a prenuptial agreement. Be sure to be completely open about your finances. Failure to disclose relevant financial information can render the agreement invalid.

A prenup must be entered into voluntarily by both parties without coercion or duress. Each party must have sufficient time to review the agreement and consult with independent legal counsel if desired.

1. No Unconscionable Terms

A prenuptial agreement in California cannot contain terms considered unconscionable or grossly unfair to one party. Courts may invalidate provisions that are deemed excessively one-sided or oppressive. Being overly aggressive or unfair with a prenup can end up working against the goal of asset protection.

1. Child Custody and Support

While prenups can address financial matters, they cannot determine child custody or support arrangements. California family courts decide child custody and support based on the child’s best interests, regardless of any provisions in a prenuptial agreement.

1. Execution and Notarization

To be legally valid, a prenuptial agreement in California must be in writing and signed by both parties. Additionally, it’s recommended that the agreement be notarized to provide an extra layer of authenticity.

In addition to prenups, California recognizes postnuptial agreements, which are similar contracts entered into after marriage. The difference between a prenuptial and postnuptial agreement is that while postnups serve the same purpose as prenups, they may require additional considerations and disclosures due to the marital relationship already being established.

1. Modification and Revocation

Prenuptial agreements can be modified or revoked after marriage, provided both parties consent to the changes in writing. However, any modifications should follow the same procedural requirements as the original agreement to ensure validity.

What Does a Prenuptial Agreement Not Cover?

While prenuptial agreements can address various financial matters, there are limitations to what they can cover. Here are some aspects that prenups typically do not address:

• Child custody and support: As mentioned earlier, prenuptial agreements cannot determine child custody or support arrangements. This includes matters related to visitation as well. Courts decide these matters based on the best interests of the child at the time of divorce or separation.

• Non-financial obligations and personal matters: Prenups generally focus on financial issues and asset division. They cannot enforce non-financial obligations, such as fidelity or the division of household chores. They also typically do not address personal matters such as social responsibilities or lifestyle choices.

• Illegal provisions: Prenuptial agreements cannot include provisions that violate the law or public policy. For example, agreements that attempt to waive child support obligations or encourage illegal behavior would be unenforceable.

Enforceability of Prenuptial Agreements

Despite following all legal requirements, prenuptial agreements can still be challenged and invalidated under certain circumstances. Common grounds for challenging a prenup in California include:

• Lack of full disclosure: If one party fails to disclose significant assets or debts, the other party may challenge the agreement on grounds of incomplete disclosure.

• Coercion or duress: If one party can prove they signed the prenup under duress or coercion, such as threats or undue pressure, the agreement may be deemed invalid.

• Unconscionability: If the prenuptial agreement terms are grossly unfair or one-sided, a court may refuse to enforce them.

• Fraud or misrepresentation : If one party can demonstrate that the other party engaged in fraudulent behavior or misrepresented facts related to the agreement, the agreement may be invalidated.

Conclusion

Navigating the complexities of prenuptial agreements in California can be daunting, but with careful consideration and legal guidance, couples can create a document that protects their interests and provides peace of mind.

Whether you are entering into marriage or contemplating a prenup after engagement, understanding the nuances of California’s laws is essential for drafting a comprehensive and enforceable agreement.

By addressing financial matters upfront, couples can strengthen their relationship and lay the groundwork for a secure future together. Remember, while prenups offer valuable protections, they have limitations, and it’s essential to consult with a qualified family law divorce attorney to ensure your agreement is tailored to your specific needs and circumstances.

About Divorce Family Lawyer, Leon F. Bennett, Esq.

The Law Offices of Leon F. Bennett provide efficient and effective Family Law services throughout Southern California for over 35 years that satisfy you and your family’s goals. Leon F. Bennett, Esq. is an expert family law attorney in Woodland Hills, Ca., who will get the desired results for you and your family.

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