Getting married is one of the most critical decisions that a person can make in life. It’s sad that most marriages in this modern world end up in divorce. Even though almost all marriages are established on the foundation of love, it’s significant to consider all factors involved in this institution and even plan for any risks that may arise along the way. This is where a prenuptial agreement, which is also referred to as premarital agreement comes in handy. This is a legally binding agreement made between two individuals who want to get married to one another. A prenuptial agreement is covered under California’s Uniform Premarital Agreement Act (UPPA).
The agreement usually covers all the things that the couple is coming into the marriage with such as finances and property. This arrangement, therefore, allows them to come up with the most reliable and standard manner in which they can handle them in case of a divorce. Even with that said, setting up prenups can be complex and tricky to decipher depending on what each party brings into the marriage. There is always a delusion that prenuptial agreements are only applicable to wealthy individuals with lots of property and assets. This is not the case as this agreement is available to all those who want to get into a marriage. A prenup can be changed or terminated after the beginning of the marriage.
How Does a Prenuptial Agreement Work?
According to California law, during a divorce, all assets, property, and even debts should be divided in accordance with the community property law. This, therefore, implies that all the property, debts, and assets must be regarded as either community property or separate property after which all the community property is equally shared among the involved parties. In the event that an individual gets married again, they will have to start the process all over again with each of the parties involved bringing their separate property into the new marriage, which is divided between the couples in case of a divorce under the California community property law.
If, for instance, one of the parties comes into the marriage with a child, they would want to set aside some of the assets or property for the child. This is only possible through a prenuptial agreement. Failure to create a premarital agreement in such instances may lead to the other party having legal access to such assets and property instead of the child.
In some instances, premarital agreements may include terms for how a divorce settlement may be reached if the marriage is to be dissolved. Most prenuptial agreements are usually tailored with respect to the explicit needs of the couples involved. You can only be able to comprehensively understand the law and the benefits of a prenuptial agreement through the help of a qualified attorney. Having a Prenup gives you the voice in case of a divorce which might not be enjoyed if you leave the law to take its course.
The Importance of Prenuptial Agreement in California
There is a wide range of advantages a couple can get when they have a premarital agreement and some of them include:
- Eradication of conflicts in case of a divorce in terms of who takes custody of the children born or adopted in the course of the marriage. This reduces the pain on children in having to contend with the separation.
- This form of agreement is cheap as it eliminates the expenses incurred in fights to retain the assets the couple had.
- It distinguishes between individual property, and family-owned property or communal property and this ensures that the interests of each individual property are safeguarded.
- A prenuptial agreement helps safeguard estate plan for the couple.
These forms of agreements allow the couple to lay the foundation for general rules for making future decisions during the course of their marriage. It’s worth noting that there are two key aspects that cannot be part of a prenuptial agreement in California;
- Child support
- Child custody
These two aspects will be ascertained by the authority of the court.
What If You Do Not Have a Prenuptial Agreement?
Failure to put in place a pre-marriage understanding means that government regulations and procedures will be the deciding factor of who gets what in event of a separation or demise of one of the partners. Marriage is usually seen as an agreement between those getting married. With this comes several automatic rights on the property for each party. Some of the most common rules that will be dictated by the court if there is no prenuptial agreement include:
- All property acquired during the marriage period are shared between the couple
- Communal property or marital property management is shared between the couple (In some cases, those contemplating divorce may be forced to give it away or to sell it)
- Debts incurred throughout the marriage by one or both spouses will be shared
Creation of a Valid Prenuptial Agreement
Prenuptial agreements are relatively becoming more popular today as compared to back then. However, state courts still keenly carry out an evaluation on these agreements. If the court considers an agreement as “unfair” and is not up to state-set standards and requirements, then that agreement is considered null and void and will not be effective in the event of a divorce.
Spouses can come up with their own prenuptial agreement before they can visit their attorney. There are several templates, worksheets, and other resources that can be accessed online or at the library and can be used in drafting these agreements. A premarital agreement must be precise, comprehensible, and legally binding in the state of California and it’s imperative to have it reviewed by a San Diego Family Law Attorney.
What Happens If a Spouse Dies?
A prenuptial agreement is also essential in the event that a spouse dies. In the agreement, you can include details of what will happen to different assets and your children. For example, if you wish for certain property to be allocated to specific children or for some assets or property to stay within your biological family, this can be captured in your premarital agreement.
A premarital agreement that is properly executed is a legal contract. The problem is that many individuals whether through deliberate or inattention don’t follow the rules. According to the Uniform Premarital Agreement Act, a prenup will only be enforced by the court if the spouse:
- Received full information about the finances and assets of the other spouse before the agreement was signed
- The spouse had a minimum of 7 from the time that the agreement was received
- When signing the agreement, the spouse was represented by a separate, independent attorney
If you are already married and you would like to come up with a prenuptial agreement with your spouse, you’ll be left with the option of entering into an agreement referred to as a “postnuptial agreement or a post-marriage agreement.” These agreements also give you the opportunity to outline plans with the same effect as the prenuptial agreement. It’s also worth noting that the prenuptial agreement can be modified after the wedding. For example, if there is a change in your financial status, then a modification or alteration of the prenuptial agreement can be effected. However, these modifications can occur only when:
- Both parties are in agreement to the terms; and
- The changes made are put in writing and signatures appended to them.
A married couple could also think of updating the terms and conditions of their agreement should they become parents and/or relocate to a different state.
Some of the Mistakes Committed When Creating a Prenuptial Agreement
The process of creating a prenuptial agreement is more involving and requires one to take into account all the legal considerations. Signing a prenuptial agreement is one of the best decision you can ever make when you’re getting married whether poor or rich. Below are some of the common mistakes committed during the process of creating a prenup:
Use of Vague Language
Given that the validity of any given legal document is dependent on its wording, it’s important to ensure that your prenuptial agreement is not only clear but also concise. You should make sure that there is no chance for misinterpretation or mistakes in future. To avoid making this mistake, it’s imperative to talk to an experienced attorney who will help you in drafting the contract to make sure that the entire wording of the document is correct and specific.
Pressuring Your Partner into Signing
A prenuptial agreement can be rejected by the courts if one of the parties involved in the marriage presents substantial evidence proving that they were coerced to sign the agreement. The application of undue pressure, threats, or blackmail are considered forms of coercion. To avoid this kind of coercion, it’s important to ensure that the signing of the prenuptial agreement is done one to three months prior to the wedding.
Coming Up with Promises You Cannot Keep
Make sure that you do not make promises that you cannot live up to. This is important because the courts can interpret such promises as acts of fraud and therefore use them to invalidate your prenuptial contract. On the other hand, your partner can use the unfulfilled promises to argue that they are the ones that compelled them to sign the agreement which can be used to annul your prenuptial agreement.
Failure to Make the Agreement Official
To ensure that your prenuptial agreement holds up in court, it’s important to make sure that you create the agreement in the presence of a certified attorney. You and your spouse should have your independent lawyers to help you through the process and witness the voluntary validation of the prenuptial agreement.
Inclusion of Unenforceable or Unacceptable Provisions
It’s a requirement that any prenuptial agreement should have a disclosure contain all the information about the spouses’ assets and all financial information. Avoid the use of unconscionable provisions or unusual provisions. The inclusion of either of these mistakes does not only make your prenuptial agreement weak but also the courts can use it to nullify the whole document.
Understanding Clause in Prenuptial Agreements
Our attorneys are one of leading Prenuptial Agreements lawyers in San Diego simply because we dedicate most of our time to helping clients understand how the agreement is used. This document that has legal implications can be put into several uses, especially when the health of a partner or their loyal commitment is questionable. Prenuptial agreements clauses are in place to ensure that the marriage terms are outlined in writing for them to be legally binding documents. Popular clauses in the prenuptial agreement consist of adultery and the financial implications therein. This means that if one of the spouses in the marriage is proven to be unfaithful and cheating on the other, then their agreement can outline that their portion of the marital assets is stripped off. In other words, you cheat, you get out empty-handed.
Clauses exist at all levels ranging from guardianship to the amount one gets in comparison to the duration of the marriage. For example, if two people are married for a period not exceeding five years, then their prenuptial agreement may state that one is entitled to a certain amount of dollars that is set to increase over the years. With the help of our well-respected and highly skilled attorneys, you’ll be able to draft a Prenuptial Agreement regardless of what you’re trying to protect in your marriage be it your favorite pet or your highly valued art collection.
Contact Us for Assistance
If you’re planning to say “I do,” it’s imperative to consult with a seasoned family law attorney concerning your prenuptial agreement options. This will ensure that you understand the requirements and that you’re not leaving anything to chance should your marriage be dissolved in the future. At San Diego Family Law Attorney, our goal is to help you gain control over your future financial situation. Instead of going handling the complex set of laws associated with property division in the event of a divorce, our attorneys will give you peace of mind by helping you come up with a premarital agreement that will protect you and your children. To discuss your prenuptial agreement, contact the knowledgeable and experienced lawyers at San Diego Family Law Attorney today at 619-610-7425 for a free consultation.