No one enters into marriage with the intention of divorcing, but it does happen. In the event of a divorce, you may be glad to have the protections of a prenuptial agreement (commonly referred to as a “prenup”).
When executed correctly, these agreements control the way that certain issues are resolved in a divorce – typically the way that property is divided and any alimony that will be paid.
Importantly, in order to be valid, certain conditions must exist at the time that a prenup is signed, so it extremely important for anyone who is considering entering into a prenuptial agreement in California to speak to an experienced lawyer as soon possible.
If you have questions about entering into an agreement – or the effects of an agreement that you have already signed – the Los Angeles family law attorneys at Furman & Zavatsky can help protect your rights.
We offer free consultations and are happy to talk to you about a potential prenup into which you may enter or the enforceability (or non-enforceability) of an existing prenuptial agreement. You need to know what to include in a California prenuptial agreement.
What Can a Premarital Agreement Do?
When considering a premarital agreement, it is important to have a clear understanding of your specific goals. A prenup is not the right tool for punishing infidelity or hiding assets from your spouse.
In fact, these goals are prohibited by the California Family Code, which has adopted the Uniform Premarital Agreement Act. Here are some goals that can be addressed in a premarital agreement:
- Rights and obligations in the property owned by either spouse
- The rights to manage and control property (buy, sell, lease, use, transfer, exchange, abandon, consume, expend, assign, mortgage, dispose, etc.)
- How property will be disposed of upon separation, divorce, or death of either spouse.
- Preparation of documents (such as a will or trust) to carry out the provisions of the premarital agreement
- Rights in life insurance policy equity and benefits
- The law that will be applied to interpret the premarital agreement in the event of a dispute
- Provisions for spousal support (commonly known as alimony).
By very clearly identifying your specific goals, an attorney can help you find the best legal tools for meeting these goals and protecting your legal and financial interests.
Is it Possible to Get Out of a Premarital Agreement?
Yes. The Family Code lists a series of specific circumstances in which a divorce court is prohibited from enforcing the provisions of a premarital agreement. These can include:
- If either party did not enter the agreement voluntarily.
- If one party did not receive a fair, reasonable, and full disclosure of the other party's property or financial obligations prior to entering into the agreement.
- If either party did not have an opportunity to obtain his or her own lawyer and get independent legal advice prior to signing.
- If either party placed the other party under duress or used fraud or undue influence to convince the other party to sign the agreement.
Some of these circumstances are vague and must be interpreted by the court on a case by case basis. For example, parties will often disagree about whether they “voluntarily” entered into the agreement.
California case law has explored many of these questions at length, and it can be used to bolster your argument for not enforcing the agreement or to defend the agreement against your spouse's claim that it should not be enforced.
The Importance of Retaining an Attorney
If you are considering entering into a prenuptial agreement or already have one, there is a good chance that either you or your fiancée or spouse have assets that you wish to protect in the event that your marriage sours.
If you are serious about protecting these assets, you should take every step you can to ensure that your prenuptial agreement is written in a way that accurately expresses your intentions and will be enforceable should the time ever come to enforce it.
Similarly, if you are in a situation in which you spouse has significantly more assets than you, it is critical that you understand your rights and do not sign anything that you do not fully understand.
Finally, if you are in the process of getting a divorce where a prenuptial agreement may control the resolution of certain issues, it is important for all parties involved to determine whether it is valid and enforceable.
For these reasons, anyone that may be affected by a prenuptial agreement should speak to an attorney about their legal rights and options.
If you are contemplating a prenuptial agreement, or have questions about the enforceability of an existing agreement, contact the experienced family law attorneys at Furman & Zavatsky. We will help you meet your contractual goals and protect your financial interests. Call (818) 528-3471 to schedule your free consultation today.