Los Angeles Prenuptial Agreement Lawyer
How to Get a Prenuptial Agreement in California
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. 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.
What Does a Prenuptial Agreement Do?
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 the following actions regarding the said property:
- Lease out
- Otherwise manage
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.
Do I Need a Prenup?
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.
It is also a common misconception that only couples who possess large amounts of money or significant property need to enter into a prenuptial agreement. A prenuptial agreement can have many potential benefits and can ensure that your finances are protected in the event of divorce.
Individuals who have children from another marriage often choose to do prenuptial agreements because it ensures that the children will be taken care of in the event of their death. A prenup can also protect one spouse from losing half of the assets from their business or inheritance as community property.
Who Needs a Prenuptial Agreement?
If you fall under one the of following situation, it is necessary to get a prenuptial agreement:
- Significant assets: If one of the parties enters the marriage with a significant investment account or real estate, the agreement can explain what will happen to those assets in the event of a split.
- Significant debts: If one party has significant debts, the agreement can ensure that those debts are kept separate in case of a divorce. However, be aware that if your spouse owes money in federal student loans or taxes, you could be held liable for that debt after the divorce, even if you have a prenuptial agreement.
- Vastly different income: It's not uncommon for one spouse to earn significantly more than the other spouse. In the event of a divorce, a prenuptial agreement can set a limit on how much the lower-earning spouse gets providing the agreement is reasonably fair. While a couple can write an agreement that says that alimony will not be awarded under any circumstances, enforcing it can be difficult, especially in a long-term marriage.
- Owning a business: If one of the parties owns a small business, it's wise to draw up a prenuptial agreement that will protect the business' assets, and shield the non-owner spouse from liabilities.
- Subsequent marriages: While prenups do not replace estate plans, they can dictate who will pay for certain expenses for children from a previous marriage and outline how each spouse's assets will be split upon death or divorce.
- Inheritance situations: In California, an inheritance is not considered community property, meaning it belongs strictly to the spouse who inherited it.
Cash inheritances are not problematic, but inheriting real estate can be, especially when the married couple moves into the home and both spouses contribute to the house payments. A prenuptial agreement can explain how separate interest in the home is to be maintained, even if both spouses pay the mortgage.
Do You Need a Lawyer for a Prenup in California?
It is common for many engaged couples to feel uncomfortable discussing prenuptial agreements. It is viewed as a taboo subject, because no new couple wants to acknowledge the fact that they may at one point decide to divorce. We urge you to take a detached and practical view of the subject, because it is imperative that you protect yourself, your family, and your finances.
Since prenuptial agreements in California 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.
If you are currently engaged, a Los Angeles prenuptial agreement lawyer at Claery & Hammond, LLP can help you with a number of legal issues to ensure you are protected when entering marriage. Our firm is experienced in creating all types of nuptial agreements including postnuptial agreements, and we assist you.