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 & Hammond, LLPto discuss this matter and to ensure that your interests are protected.