Prenuptial agreement

There is a very good book by New York family law attorney Arlene Dubin called Prenups For Those In Love. It is light hearted, an easy read, and it discusses how to broach the subject of prenuptial agreements (in California lawyers and judges call a prenuptial agreement a premarital agreement, but they’re the same thing), what a prenup can and can’t do and when and why it makes sense to have one. 

What is a prenuptial agreement? 

A prenuptial agreement is an agreement ( a legal contract)  between people who intend to marry.  The prenuptial agreement sorts out their financial matters such as property division and financial support in advance in case of a future separation, a divorce or death. The agreement supplants the law that otherwise would apply which in California is found in the Family Law Code.

Who needs a prenuptial agreement? 

 Younger couples can use a prenup to protect businesses, professional practices, careers, inheritances. and credit.  For more information on the steps business owners should take to protect their interest in a business read my blog post by clicking here.  Older couples use prenuptial agreements for the reasons above and also to protect the funds they’ve built up for retirement and to protect their assets for their children from prior marriages.

What can you do with a prenup?  

Family Code Section1612 sets out what can and cannot be done with the agreement. Any financial issue can be dealt with in a premarital agreement.

What can’t you do with a prenup? 

Issues relating to children, including child support and custody are not permitted. Nor is one allowed to contract about obligations during the marriage, such as household chores, the frequency of sexual relations, or penalties for adultery.

Can you “get rid of” your obligation to pay spousal support with a prenup? 

Probably. California has special provisions regarding spousal support in prenuptial agreements. Provisions regarding spousal support will likely be enforced if a person whose receipt of spousal support is limited or waived had independent counsel (was represented by an attorney) before entering into the agreement. But, the law also states provisions regarding spousal support will not be enforced if they are unconscionable at the time of enforcement. This means that it is not possible to determine in advance with absolute certainty whether a spousal support provision will be enforceable when you separate because your financial circumstances can change at over time.

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Can you ensure your business or professional practice remains your separate property?

 Yes. But the prenuptial agreement and the process must be done correctly.  Parties contemplating marriage may validly contract as to their property rights, both as to property then owned and as to property and earnings that may be acquired during the marriage. (In re Marriage of Dawley, supra, 17 Cal.3d 342 at p. 349.) However, pursuant to Family Code Section 1615 a prenup will not be enforced if the party resisting enforcement can demonstrate that he or she did not enter into the contract voluntarily.  A party may also resist enforcement by demonstrating that the contract was unconscionable when entered into and that he or she did not have actual or constructive knowledge of the assets and obligations of the other party and did not voluntarily waive knowledge of such assets and obligations. (§ 1615, subd. (a)(2).)  Lots of legalities boil down to this: Full disclosure of assets between the parties, arm’s length negotiations, and separate attorneys representing each party will give you the prenuptial agreement you want.

Prenuptial agreements make sense, but as we all know people aren’t machines. Discussing the subject can be tough. Some people feel that a prenup will set the marriage up for failure or that asking for one indicates a lack of trust. Prenups can and should be fair. Prenups are complicated. They require a family law attorney who knows the relevant laws and has experience drafting them.  If you think you need one, you owe it to yourself to find out more about them.

Prenuptial Agreement Lawyer in Los Angeles, CA

I have practiced law in Southern California for more than 25 years, and my highest priority has always been to put my clients’ needs first. I am willing to negotiate early, settle your case, and take your case all the way to court when needed. My unique approach has helped me receive top ratings from both Avvo and Martindale. If you have been presented a prenup by your partner we can represent you to ensure you get a fair deal and that your rights are protected.