We've all heard about
prenuptial agreements being used by the rich and famous and celebrities, but even average people
use prenuptial agreements to protect their assets in the event of a divorce.
For a lot of people when they are madly in love the last thing they want
to do is bring up to their future spouse the idea of a prenuptial agreement,
especially since a prenuptial agreement entertains the idea that their
marriage may one day end in divorce.
While prenuptial agreements may leave one feeling as if their fiancé
is questioning the endurance of their relationship, in reality a sound
prenuptial agreement can serve to protect the interests of both parties
in the event of a
divorce. While it may be second nature for two people of means to sit down with
their attorneys and draft a prenuptial agreement, there may be less of
an understanding in situations where one party has far more assets over
their fiancé. However, it's important for one to put themselves
in the other person's shoes. If one worked hard their entire life
to either get a prestigious education and a high earning job, or if they
worked endless hours to build a business or a career from nothing, it
simply wouldn't be fair for them to lose half of what they earned
in a divorce, especially if the marriage was of a rather short duration.
The state of California is a community property state, which means that
the majority of property acquired during the marriage is owned by both
spouses and divided in a divorce or upon death. The theory behind the
community property state is that everything is divided equally and more
or less 50/50, whereas in an equitable distribution state such as New
York, property may be divided in an unequal fashion and according to what
a judge deems fair and just considering the circumstances.
If you are a person of means and your fiancé is not, then the laws
of community property may work against you. Since the state of California
tends to divide assets down the middle, a large percentage of engaged
couples seek out asset protection in a prenuptial agreement. While bringing
up the idea of a prenuptial agreement is anything but romantic, pressing
forward with one is truly the responsible thing to do and you can count
on the fact that anyone in your position would do the same.
Prenups Under California Law
Prenuptial agreements in this state are covered under the California Family
Code Section 1610-1617. Under Section 1610-1671, it states that premarital
agreements are to be in writing and signed by both parties, and that they
are enforceable without consideration.
A California premarital agreement generally goes over each party's
rights and responsibilities in regards to any property that belongs to
either or both parties and whenever or wherever the property was acquired
or located. It also addresses each party's rights to buy, sell, use,
transfer, or exchange or lease out otherwise manage or control said property.
Spousal support, including a waiver of spousal support is not enforceable if the person
was not represented by their own independent legal counsel at the time
the agreement was signed, or if the spousal support provision was unconscionable
at the time of the enforcement.
In the United States, prenuptial agreements are not allowed to dictate
matters regarding children, especially as they pertain to child custody
and visitation. Since circumstances can change dramatically as the years
go by for a couple, the courts prefer to make a child custody decision
based on the bests interests of the child.
Prenuptial agreements are powerful tools, especially in the state of California
where if executed properly, they can be legally binding and upheld in
the courts. The engaged couple is required to wait seven days after the
premarital agreement is presented before signing; however, there is no
requirement that says it has to be signed a certain number of days prior
to the wedding.
A prenuptial agreement in California can waive one spouse's rights
to property and it can set limits on spousal support providing they aren't
unreasonable. It can also act as a contract where if one spouse dies they
must provide for their spouse upon their death. Since prenuptial agreements
can take months to negotiate, it's a wise idea to begin drafting one
sooner than later as opposed to waiting to the last minute as many couples
tend to do. If you are getting married and are going to need a prenuptial
agreement, then it's imperative that you have your own legal representation.
Please contact an attorney from Claery & Green, LLP to discuss this
matter and to ensure that your interests are protected.