ANSWER: Simply put, a Prenuptial Agreement (also known as an Antenuptial or Premarital Agreement) is a contract entered into by you and your future spouse. Normally, the contract deals with straightforward financial and legal issues in the event of a divorce or a death — what will be done with the house, investments, 401K, or other such marital assets. They might also include some extras like spousal support, or even what happens to the family pet.
In California, it is assumed by law that when you are married, half of all earnings, property accumulated from those earnings during marriage, as well as appreciation of assets, belongs to your spouse upon divorce or death. Additionally, some laws regarding marital property or the marital home are not very clear and each party’s ownership can depend on a number of different facts. This causes considerable uncertainty on who will own what if a divorce occurs. By having a custom Prenuptial Agreement drafted for you by the lawyers at CA PRENUP, you can ensure that everything you earn belongs to you alone, and that should the worst happen, divorce or death, you will be able to keep your assets or decide what is done with them.
ANSWER: The earlier the better, but the general rule of thumb is, if possible, to have the prenuptial agreement finalized and signed 30 days prior to the wedding. California Uniform Premarital Act (law governing Prenups in California) requires a 7-FULL-day wait period from the time of presentation to ensure the parties have time to reflect and decide whether they want an attorney to represent them or sign the agreement.
If your wedding date is fast approaching call us at 1–888-PRENUP-1 (1-888-773-6871), and speak with an attorney about your options. Although presenting the agreement to your spouse with ample time before the wedding is preferred, there are numerous ways to protect yourself even if your wedding date is fast approaching. We will work with you expeditiously and give you the best legal advice for your situation to insure you are protected – we have drafted many Prenups the same day as calls have come in because timing was critical.
The day you present the Prenup to your fiancé and the day you both sign the Prenup in front of a CA notary do not count towards the 7-days, rather it is 7 FULL days between these two events (7 calendar days). Furthermore, when practical and to be conservative and prudent we attempt to start the waiting period from the time the Prenup is deemed final by the parties.
- Keep finances separate. California designates certain kinds of assets accumulated during marriage as marital property or community property, even if these assets are held in the name of just one spouse. In general, if a couple divorces, or when one spouse dies, the marital or community property will be divided between them, either by agreement or by a court. You can avoid having some or all of your individual accumulations during marriage divided up by a court through the use of a premarital agreement.
- Protect each other from debts. Some of us bring debts, as well as assets, to a marriage. If there’s no Prenup, creditors can sometimes turn to marital or community property to satisfy the debts of just one spouse. But if you want to make sure that saying “I do” does not mean saying “I owe,” you can use a Prenup to limit liability for each other’s debts.
- Give up the right to alimony. California allows for you to limit or have the parties waive their right to alimony — also called spousal support or separate maintenance — if there is a divorce. However, to be effective both parties must be represented by lawyers and at the time of divorce it cannot be viewed as “unconscionable” (shocking or outrageous) to a judge.
- Provide for children from prior marriages. A Prenup is helpful (perhaps essential) if either of you has children from another relationship and you want to make sure that your children inherit their share of your property. In a Prenup, one or both spouses can give up the right to claim a share of the other’s property at death, perhaps in exchange for an agreed upon amount of property.
- Keep assets in the family. If your property includes something you want to keep in your birth family, whether it is an heirloom or a share in a family business, you and your spouse can agree that it will remain in your family, and you can specify that item in your Prenup. This can even include assets that you expect to receive in a future inheritance.
- Follow through by making your estate plan. In addition to using your Prenup to waive inheritance rights and state your intentions for passing on your property at death, it’s vital that you prepare estate planning documents — a will, living trust, and so on — that actually transfer your property as you intend.
ANSWER: What You Can’t Do With a Prenup.
There are some things you just can’t — or shouldn’t — do with a Prenup. As a general rule, any agreement to do something that is illegal or against state-defined public policy will be considered unenforceable — and may even jeopardize other valid aspects of the premarital agreement. Here are some things that you can’t do, at least in some states:
- Restrict child support, custody, or visitation rights. No state will honor agreements limiting or giving up future child support. The same holds true of agreements limiting future custody and visitation rights. This is because state lawmakers consider the welfare of children to be a matter of public policy and do not enforce any private agreements that would impair a child’s right to be supported or to have a relationship with a parent in the future.
- “Encourage” divorce. At one time, many courts viewed any Prenup specifying how things would be divided up in case the couple splits as void and unenforceable because it was thought to promote divorce. The modern approach allows such agreements, but judges in some states still take a hard look at them. If the agreement appears to offer a financial incentive for divorce to one party, it may be unenforceable.
- Sanction People for Infidelity, Drug Use or Religious Upbringing. In California, courts have not allowed penalties in Prenups that sanction people for infidelity or using recreational drugs. Court will not enforce requirements that one person will do the dishes or that the children will be raised in a certain religion.
If you want to end up with a clear and binding Premarital Agreement, you should get help from a good lawyer who has significant experience in drafting prenuptial agreements. In fact, we strongly recommend that there are two lawyers involved — one for each of you. Here’s why.
While it is not necessary that both parties have an attorney, it is highly recommended that the party who did not have the document drafted review the document with an attorney. This will not only allow for them to fully understand the agreement, and any rights they are waiving, but will also help insure that the prenuptial agreement will be upheld in case of divorce. Furthermore, there are specific process and legal implications that your lawyer at CA Prenup can explain if your spouse does not have a lawyer, which may impact the enforceability of the prenuptial agreement. For instance, your spouse may waive his/her right to independent counsel, BUT this must be done in a separate document to be compliant with California law (as required by the Uniform Premarital Act). Also, there will be potential consequences regarding the enforceability of certain sections of the Prenup, such as Restrictions on Alimony or Spousal Support if one party does not have their own independent counsel.
Typically, however, if one spouse earns much more than the other spouse (there is an imbalance of income or net worth), the court will help keep the lower earning spouse living at a level they were accustomed to during the marriage. The general rule of thumb for how long alimony is provided is for ½ the marriage term, which can be a significant duration. If a marriage is over 10 years in length, it is policy of the state of California to allow permanent spousal support. That means that the lower earning spouse will be given alimony until they die or remarry!
Additionally, the California courts have ruled that the Waiver of Alimony can be overruled at the time of divorce if the waiver is found to be ‘unconscionable.’ Under certain circumstances the courts may overrule a waiver of spousal support based on the parties’ relative financial positions at the time of divorce, not when they signed the contract. While not always effectual, depending on the parties circumstances at the time of divorce, it is better to have the chance of the waiver being found valid than not have any protection whatsoever.
While any notary type will suffice, we recommend the “Jurat” notary. Jurat notarizations are required for transactions where the signer must attest to the content of the document, such as all affidavits and pleadings in court. It is a certification on an affidavit declaring when, where and before whom it was sworn. In executing a Jurat, a notary guarantees that the signer personally appeared before the notary, was given an oath or affirmation by the notary attesting to the truthfulness of the document, and signed the document in the notary’s presence. It is always important that the notary positively identify a signer for a Jurat, as s/he is certifying that the signer attested to the truthfulness of the document contents under penalty of perjury.
It does not matter if one or both of the parties is certain to have destroyed all the copies. If the revocation of the premarital agreement is not handled properly, either party may seek to enforce the agreement.
Before attempting to revoke or amend a pre-marital agreement, it is best to seek assistance of a licensed attorney familiar with such agreements.
ANSWER: Keeping the house in your name only and paying all expenses yourself increases the likelihood that you will be awarded all or most of the house in case of a divorce.
But if the two of you stay married for a number of years, equitable distribution law is likely to kick in, meaning that a judge will add the value of the house to the mix when dividing your joint assets. The judge is likely to presume that you have paid the mortgage and maintenance from your after-marriage earnings, which are considered marital property.
A prenuptial agreement, with fair terms that your intended spouse understands and then signs, can strengthen your position and keep the home as your separate property, avoiding this risk.
Although somewhat rarer than prenuptial agreements, post-nuptial agreements that use the proper legal language and are prepared by an attorney can be as effective as a prenuptial agreement. There are some important distinctions between a Prenup and a Post-nup that should be discussed with your lawyer. For instance, with a Post-nup California specifically allows for “Marital Agreements” but it does not provide specific things that must be done to ensure it is enforceable as is done for Prenups. Additionally, as time passes during the marriage, just as business partners have a sense of loyalty to each other, so does the loyalty between husband and wife increase. This provides another element that must be assessed in drafting a Post-nup and CA PRENUP ensures this is met by requiring both sides have an attorney during the process and ensuring the Post-nup is balanced and fairly achieves the parties’ desires.
In Summary, a Post-Nuptial agreement can afford the same protections as a Prenup as long as it is properly drafted.
Unmarried couples, on the other hand, do not automatically enter into a contract when they start a relationship. If you want to legally establish how you will own property during your relationship, as well as what will happen if you separate or if one of you dies, you must write out your own rules. (Married couples do something similar when they create a premarital agreement. Your agreement will be legally called a “Co-Habitation Agreement,” also referred to sometimes as “living together contract.”)
Some couples find it unromantic or depressing to even think about making a contract governing mundane details like money and property, particularly if doing so involves thinking about what might happen in the event of separation. But preparing a sound Cohabitation Agreement can help you in a whole host of ways. Practically speaking, your agreement will help you avoid trouble when you mix your money and property, and it will make clear your intentions and expectations regarding property ownership, household expenses and the like. It can also greatly ease the division or distribution of property after a breakup or death. On a more personal note, the process of negotiating and drafting your agreement may well strengthen your abilities to communicate with and understand each other.
- Prenuptial Agreement reviews
- Post-nuptial Agreements – draft and reviews
- Cohabitation Agreements – draft and reviews
- Consultation regarding any Prenup, Post-Nup or Cohabitation Agreement
- Amendments to any of these agreements.
Step 1: Set up an Appointment
Contact our Office to schedule an appointment at least two weeks before your wedding (preferably six weeks) for a Prenuptial Agreement, or any other time for other Agreements. We can be reached at 1–888-PRENUP-1 (1-888-773-6871). If your wedding date is fast approaching, call us so we may explain your options. Because CA PRENUP specializes exclusively in California Marital Agreements, our Agreements contain advanced provisions for flexibility and to better protect you.
Step 2: Speak with a California Licensed Attorney
One of our attorneys will call you for your appointment and speak with you to obtain specifics of your situation and intentions. Your agreement will then be drafted, customized to your unique circumstances. With CA PRENUP, your conversation is private and confidential.
Step 3: Review/Revise/Validate Agreement
Once drafted, your attorney will send you your Agreement within 48 hours. Then, simply follow our next step instructions which include to review your agreement, notify your attorney of any changes, then validate the agreement with your fiancé.