For most of us, the days of marrying right out of high school or college are long over. Many people are waiting to establish their careers before they jump into marriage.
Further, many couples find themselves entering a second marriage. As couples come into marriages with more property of their own, they are naturally interested in protecting those assets in the event of divorce.
It seems like with the steady rise in divorces, prenuptial agreements are becoming a standard precaution. In California, couples who are engaged are allowed draft a contract that says if we divorce, the contract will dictate a variety issue including division of marital assets and spousal support (alimony).
While no one enters a marriage thinking that divorce is imminent, the fact is that divorce happens and paying attention to this fact is not an indictment of the marriage.
For these reasons – and many others, besides – the stigma of prenuptial agreements has faded considerably, and more and more couples are implementing these important contracts. If you have questions or concerns related to a prenuptial agreement, an experienced California divorce attorney at our law firm can help.
Items You Should Include in a California Prenuptial Agreement
Prenuptial agreements can include a wide range of provisions, but there are several basics that most couples take into consideration:
- Alimony – An important concern that many prenuptial agreements cover is whether or not the spouses waive the right to spousal support – commonly called alimony – in the event of divorce. The agreement can also address the amount of such support and can determine a range of amounts based on the length of time the couple remains married.
- Community Property vs. Separate Property – Generally, property that you acquire before you are married is your separate property, which will not be divided between the two of you in the event of a divorce. Conversely, property that either of you acquires during the course of your marriage is considered community property that will be divided equally between the two of you if your marriage ends in divorce. A California prenuptial agreement allows you and your soon-to-be marriage partner to designate specific assets as being either separate or community property. The agreement can also address who will retain specified properties – such as the family home – if you should divorce.
- Debt Division – Debt can play a significant role in the division of marital assets. For example, if one of you comes into the marriage with the immense debt accrued in the process of obtaining a medical or legal degree, you may want to address responsibility for that debt if your marriage should come to an end.
- Sunset Clause – Regardless of the changing mores related to prenuptial agreements, some people remain extremely averse to the idea. As such, some couples include a sunset clause in their agreements. Such a clause renders the prenup null and void after the couple has remained together as a married couple for a specified number of years.
- Divorce Resolution – Another element you may find useful is the inclusion of a provision related to how your divorce will be resolved if you do find yourself facing such an eventuality. For instance, you may prefer to submit your divorce to mediation or arbitration rather than heading to court.
Limitations of a California Prenuptial Agreement
Prenuptial agreements are covered under California Uniform Premarital Act and described under Family Code 1610. It's important to note that California law gives couples wide discretion in drafting a prenuptial agreement, but there are limitations. A California prenuptial agreement can't do the following:
- Negotiate or regulate child custody or child support
- Contain terms that would encourage divorce
- Contain terms that would impose obligations on a spouse during marriage
There is also a limitation on how and when a California prenuptial agreement can be signed. For example, there is a 7-day grace period between when a prenuptial is reviewed by spouses and when it can be signed.
This is designed to give spouses an opportunity to fully understand the of the agreement. If you fail to permit a 7-day period for review, it could be grounds to void the agreement.
Factors that Prohibit Enforcement of California Prenuptial Agreement
California prohibits the enforcement of a prenuptial agreement under certain circumstances described under California Family Code 1615. It states the prenuptial agreement can't be enforced if:
- Adequate financial disclosures of spouses were not provided
- One spouse was coerced into signing prenuptial agreement
- The terms of the agreement are unconscionable
- Spouses did not understand what they were signing
- Violation of the 7-day grace period
California Prenuptial agreements are a wise strategy to dictate how assets and liabilities of a marriage will be distributed if divorced. They provide some comfort to spouses if the marriage does not work as planned.
Your Marriage: Your Prenuptial Agreement
The fact is that your marriage is as unique as you and the person you are marrying. While all of the provisions listed can be useful, your final prenuptial agreement needs to accurately reflect you and your partner's intentions and needs.
Your financial needs will evolve over time, and it can be exceedingly difficult to predict exactly what things will look like in 5 years – much less in 20 years.
Working closely with an experienced divorce attorney will help ensure that you understand precisely what you are getting into with your prenuptial agreement and that your rights are well protected.
If your soon-to-be spouse wants you to sign a prenup, don't let the love that swept you off your feet in the first place sweep you off your senses when it comes to making arrangements regarding your future.
Retain an Experienced Los Angeles Divorce and Family Law Attorney
You're about to get married, and it's a very exciting time in your life that you may not want to sully with anything as tawdry seeming as a prenuptial agreement. When it comes to prenups, however, times have changed, and if you have investments or assets that you want to protect, a prenuptial agreement is a powerful tool for doing so.
If you are considering a prenuptial agreement, contact the experienced our Los Angeles divorce attorneys who serve clients throughout Southern California, including the greater Los Angeles area, San Fernando Valley, and Ventura County.
Our lawyers are here to help you ascertain your legal needs and protect your rights into the future. To schedule a free consultation, please contact or call us at 818-528-3471.
Furman & Zavatsky
15821 Ventura Blvd #690
Encino, CA 91436