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Should You Have a Prenuptial Agreement?
If you are planning to get married in the State of California, should you and your spouse-to-be prepare a prenuptial agreement? For many couples, the answer to that question is yes. Those couples will need the advice and services of a San Diego prenuptial agreement lawyer.
Many people who marry or remarry in California may enter their marriage with substantial personal assets, substantial personal debts, and/or children from a previous marriage. To address these matters, many couples who plan to marry now prepare prenuptial agreements (“prenups”).
Some people may feel uncomfortable discussing a prenuptial agreement, but a prenup can protect both prospective spouses. Their own family law attorneys may review the agreement before they sign it. Signing a prenuptial agreement is usually a smart move for everyone who is involved.
What is Required for Prenuptial Agreements in California?
A prenuptial agreement is a binding legal contract that allows marriage partners to protect their individual property, shield themselves from a spouse’s debts, and/or spell out additional conditions and terms should the marriage conclude with a divorce.
Under California law, prenuptial agreements must be in writing and signed by both prospective spouses. Each party must have an opportunity to consult his or her own attorney, and full financial disclosures must be made (or the right to that information must be explicitly waived).
In California, a prenuptial agreement goes into effect at the same time the wedding ceremony takes place. If both prospective spouses sign a prenuptial agreement, it resolves in advance many of the disputes that could otherwise emerge in a California divorce proceeding.
How Do Prenuptial Agreements Work?
Typically, a prenup will list the assets and properties that are to remain with the original owner if a divorce ends the marriage. A prenup can also protect some of the personal property you acquire during a marriage, like personal gifts and inheritances. Additionally, prenuptial agreements can:
- provide legal protection from an ex-spouse’s creditors
- establish a spousal support (alimony) agreement in advance
- determine the amount of spousal support to be paid if a divorce takes place
What Else Can Prenuptial Agreements Accomplish?
When you have children from a previous marriage, you may want a prenup that ensures your children will receive your assets when you pass away. A prenuptial agreement, combined with your will or estate plan, can establish what is non-marital property that belongs only to you.
If you pass away before your spouse, your prenup and will or estate plan supersede the state laws that would otherwise apply. This allows you to ensure that your children receive what you want them to have.
Additionally, a prenuptial agreement can designate any business interest you own as non-marital property that belongs only to you. A prenup can shield your business property from claims made by your spouse and keep you from losing the business interest if a divorce takes place.
Can Prenuptial Agreements Address Child Custody and Child Support?
Under California law, prenuptial agreements may not address issues such as child custody, child support, or visitation privileges. California courts resolve disputes involving children on the basis of the child’s best interests.
Only financial matters may be addressed by prenuptial agreements, and a California court will not enforce a prenuptial agreement that is unfair or unjust to either partner. To make sure that your prenuptial agreement is enforceable, have it prepared by a San Diego divorce attorney.
An effective prenuptial agreement may also address life insurance, death benefits, trusts and wills, property rights, and other financial matters. A prenup may not be necessary for every couple, but every couple should discuss finances and financial goals before getting married.
How Are Prenuptial Agreements Challenged?
If a divorce happens and the divorcing spouses have a prenuptial agreement in place, one spouse may challenge the validity of the agreement and ask the court to declare it null and void. A successful challenge will require that spouse to prove one or more of these claims:
- The prenup was signed under duress, under coercion or undue influence, or by mistake
- The terms and conditions of the prenup are unconscionable – that is, shockingly unfair
When Should You Contact a Prenuptial Agreement Attorney?
Couples in California should begin preparing prenuptial agreements well in advance of their wedding dates. Each spouse should have the advice of his or her own San Diego prenuptial agreement lawyer.
Prospective spouses should negotiate the terms and conditions of the prenup, make full financial disclosures, and include provisions in the prenuptial agreement for unforeseen circumstances – what should happen, for instance, if one spouse becomes incapacitated or permanently disabled.
A carefully considered and properly written prenuptial agreement can make a divorce – if it should happen – less acrimonious, less costly, and less time-consuming for everyone who’s involved.
Be Certain That Your Prenup is Enforceable
In California, if you and your prospective spouse prepare a prenup, do not use preprinted or downloadable blank forms. You both should have a document that is prepared specifically to meet your needs and address your concerns.
Let a San Diego divorce attorney prepare a personalized prenuptial agreement for you and your spouse-to-be. That attorney can ensure that your prenuptial agreement will be enforced, if necessary, in a California court of law.
Have The Law Office of George Gedulin Prepare Your Prenuptial Agreement
Weddings are joyous occasions – especially when you know that your legal and financial interests are protected and your spouse agrees with you. To prepare a prenuptial agreement, or for help with any matter of family law, today or in the future, contact The Law Office of George Gedulin at 858-943-6591.
