When you get married, there’s a lot to think about and do. While many couples are preoccupied with wedding planning, they may neglect to think about a prenuptial agreement. Some people have the misconception that signing a prenup is an indicator that you’re going to get separated or that a prenuptial agreement is only for the rich. That’s not the case at all.
Rather, pre-nuptial agreements may cover a wide variety of subjects and can help you and your spouse put some financial tasks in order and bring clarity to how you will avoid stressful decisions in the event of death or divorce.
Generally, pre-nuptial agreements deal with property rights. They can address the property rights (either owned together or separately), the making of a will or trust, and the ownership rights and disposition of a death benefit from a life insurance policy.
California is a state that has the utmost interest in making sure children are always supported and taken care of by their parents. Therefore, a prenuptial agreement will not be enforceable if any of the terms would be in violation of the children’s best interests.
The terms of a prenup will most often be enforced as long as the terms are not in violation of the law or public policy.
Reasons to Sign a Prenup
Many people wonder why they would want a prenup if they have a solid relationship and are confident in their impending marriage. Signing a prenup can make you more prepared for the unexpected and help to protect your assets.
If you are a business owner, single parent, or business professional, you may want to consider signing a prenup to protect yourself financially. Also, if one or both parties have a great amount of debt going into a marriage, a prenup may also be a good idea. A prenup can help to prevent drawn-out court proceedings in the event of divorce because many issues will already be decided.
If you are thinking of drafting a prenuptial agreement, there are some things to consider so that everything goes smoothly.
Hire a Lawyer & Be Familiar with the Rules
Some people try to draft a prenup on their own. The danger in this is that they are probably not familiar with the laws in their state. This can lead to massive confusion and the document being drawn up improperly.
In California, the Golden State’s Uniform Premarital Agreement Act (UPAA) lays out the requirements for the state when it comes to prenups. According to the UPAA, the prenup is not effective until the marriage date. Each partner must have also received all the necessary information about their future spouse’s property, debts, and income.
Once the document is drawn up, each party has at least one week to look for independent legal counsel before agreeing to it. When both parties agree and sign, the document must be signed by a notary to be valid.
Know What is and is Not Included in the Prenup
Knowing what is and is not included in a prenup is essential to making sure a fair agreement exists. The following items are off the table when it comes to drafting a prenup in California:
- Child custody or child support
- Non-financial requirements
- Any deceptive terms
- Any language regarding a spouse’s illegal acts
- Separate property owned before marriage
Items that are included in a prenup include:
- Community property
It’s important to note that if a couple’s circumstances change after they get married, the terms of the prenup can also change. Both spouses must agree to all the changes for the new document to be valid.
What to Do Before Signing a Prenup
Before you sign a prenup, you should consider taking several steps so the process goes smoothly. These are some things to consider:
Read everything and then read it again! You want to understand every aspect of your prenup. This may require asking questions for clarification. There should be no gray areas and no surprises.
Consult a lawyer. If you and your partner drafted the document alone, you’ll want to consult a lawyer. This will assure that the document is in your best interest and that everything is legal.
Be certain before you sign. Signing a prenuptial agreement is a big step. You want to be confident in the document as well as your marriage before you sign.
Remember, the prenuptial agreement you and your spouse agree on needs to accurately reflect each of your needs and intentions. Understanding the agreement and what it should or should not include will assure that the result is a document that serves both of your interests.
In my 37 years of practicing law in California, I have seen a lot of couples make mistakes when preparing for their marriage and avoiding a legitimate prenuptial agreement. Please consult an attorney to ensure you do not make those same mistakes. If you have legal questions or simply need help drafting a prenuptial agreement, please contact me @ 714-841-1931