Considering a Prenuptial Agreement?
Often people getting married in California consider a prenuptial agreement (or prenup) to define their property rights and/or protect their separate property assets.
At the Law Offices of Michael E. Finein, I can help. Contact me to discuss your objectives and ensure you take the right steps in drafting and signing a prenuptial agreement.
A Prenup Can Trump California’s Community Property Laws In Case Of A Divorce
California is a community property state. Simply put that means that from the day you get married until the date you separate prior to divorce, everything you and your spouse earn, your labors and everything purchased with those earnings are community property. Each spouse is entitled to one-half of all community property.
- However, you can agree not to follow community property law with a prenuptial agreement.
- You can also protect your pre-marital separate property in a prenuptial agreement.
- Prenuptial agreements are enforceable contracts in which you and your intended spouse agree as to what degree California community property and spousal support laws will apply if you get divorced.
Prenuptial agreements must be carefully drafted to meet your objectives and specific procedures must be followed or your prenuptial agreement may be found to be invalid.
You do not want to be surprised to find out years later that your prenuptial agreement is not valid. A properly drafted prenuptial agreement will minimize the likelihood that the validity of the agreement will be challenged or found to be invalid if your marriage ends in divorce.
Issues With A Prenuptial Agreement
Following are several basic steps that should be taken:
- Both parties should have attorneys from the beginning of the process of discussing and drafting a prenuptial agreement.
- Do not rely on the “7 day” rule that you should present the prenuptial agreement at least 7 calendar days before it is signed and the wedding ceremony. I strongly advise you to begin the process at least 6-8 weeks before the wedding date and sign the final prenuptial agreement weeks before the ceremony.
- The agreement must not be executed under duress, fraud, or undue influence. This requirement is a key reason you should start the process at least a month or two before the wedding date and both spouses should have attorneys.
- Both parties must fully disclose all assets and liabilities.
- The agreement provisions should apply to both parties.
- If your spouse is not proficient in English the prenuptial agreement should be translated into his/her language.
- The terms of the agreement must not be promotive of dissolution.
- Make sure you follow the terms of the prenuptial agreement.
- You must not include any provisions related to child custody or child support.
- Are you considering a waiver or limitation regarding spousal support? A waiver or limitation of spousal support must be carefully discussed as they are much more susceptible to being challenged
The above are only a few of the questions, considerations and steps that go into a prenuptial agreement that meets your objectives and reduces the possibility of litigation and enforcement years later.