Prenuptial agreements (prenups) are not always a fun topic of conversation with your soon to be spouse. Discussing divorce before you even get married is not ideal as when you look at your fiancee, the last thing you see is your future ex-spouse.
However, with the current divorce rate in California being above 50%, discussing what happens to your assets in case you do end up divorced should be considered a responsible conversation. It is better to have a financial discussion when you are getting along, rather than during acrimony when feelings are emotional. A prenup can drastically ease your divorce process and save you both a ton of money and time.
To get the most from a prenup you must understand how they work and what is needed for them to be enforceable.
How Do Prenups Work in California?
Prenups in California are dictated by California’s Uniform Premarital Agreement Act (UPAA). According to this act, a prenup is an agreement between prospective spouses dictating what happens to their present assets and future assets after they become married. California is a community property state, so without a prenup, everything earned during marriage is considered joint and will be split.
A prenup allows you to alter California law and divide your assets as you want, which may mean not equally.
The property included in a prenup may include financial interests, income, real estate or debts. For a prenup to be valid, the parties to the agreement must provide full disclosure of assets to each other. They both must be fully informed about what the other has before signing. This would include all property and all debts, you should be fully aware of the financial situation of your soon to be spouse.
Additionally, each spouse MUST have at least seven days to review the final draft before signing and both parties MUST be represented by their own attorney. If the time period is less than seven days from when the document is received and when it is signed, it can be deemed unenforceable. Both parties must have their own independent counsel so it can be deemed they had full knowledge when signing.
What To and Not To Include In a Prenup
A prenup generally includes language about the division of finances. For example, what happens if one owns a house before marriage and they plan on living in the house after marriage and using marital income to pay the mortgage. This is a perfect situation to identify in a prenup. It will also include what happens it debt is accrued during marriage. Some people will include a waiver of inheritance rights if they have children from another marriage. It is truly up to you on what you want the prenup to include.
However, the prenup cannot include any provisions regarding child custody or child support. These would be deemed unenforceable provisions.
What Can Make a Prenup Invalid?
A prenup becomes invalid if it does not follow the requirements of the UPAA. For instance, if one spouse signed the prenup under duress without having full knowledge of the assets and debts of their partner, or being forced to sign an agreement without an attorney, the prenup can be deemed invalid. The prenup can also be deemed invalid if a family law judge finds the agreement is unfair.
When a prenup becomes invalid, it is not enforced by the court during a divorce. Your divorce proceedings continue as they would without a prenup.
Get Legal Advice About Your Prenup
Although you and your fiancee are on the same page on how to go about the prenup, it is always advisable to get legal advice from a reliable lawyer. The lawyer will explain all the legal jargon, helping you avoid mistakes. Additionally, you will weigh all the pros and cons together and come up with the best plans for your future.
If you’re in need of legal advice or consultation, please don’t hesitate to reach out to us at 619.289.7948