Prenuptial agreement lawyer providing a general overview
A Prenuptial agreement lawyer should provide a comprehensive explanation of what a prenuptial agreement is and when do you need it.
A prenuptial agreement is an agreement between prospective spouses that is made in contemplation of marriage and is intended to be effective on marriage. Although such agreements are sometimes referred to as “antenuptial” or “premarital” agreements, this page uses the term “prenuptial” agreements.
Parties typically create premarital agreements of two basic types:
(1) separate property agreements having a default of no community property with such property being added in, and
(2) confirmation agreements having a default of community property, with the parties confirming certain assets as separate property.
Prenuptial agreement lawyer is explaining purposes For Prenuptial Agreements
- Allow each spouse to keep their own separate property.
One of the purposes of prenuptial agreements is to make sure that a spouse’s separate property owned before marriage remains separate property after marriage. In other words, the property will remain separate regardless of any new developments that might otherwise make the property community property.
Many spouses who owned businesses will want to avoid the difficulties involved in apportioning the business in the event of any dissolution. In that case, under the prenuptial agreement, the business will remain entirely the separate property of the owning spouse, regardless of any actions taken after marriage.
- Prevent the creation of community property.
The prenuptial agreement may prevent the creation of community property during the marriage. In the agreement, each party’s earnings during marriage and before separation, and any items acquired by the party with those earnings, will be his or her separate property.
For example, should a spouse get a loan during marriage to fund a separate business, under current law, the loan proceeds from it will be community property. This means that the business will have both separate and community property interests.
- Waive or limit spousal support.
Another of the purposes for prenuptial agreements, under new legislation in 2002, the parties may agree to waive or limit spousal support (alimony).
A prenuptial agreement may allow a spouse to plan for certain contingencies should they die. For example, children from previous marriages may be provided for in a prenuptial agreement. In the event of the other death, certain property may be set aside for the children from the previous relationship.
Property of one spouse may be protected from the creditors of the other on debts incurred by the other during the marriage. As long as creditors are given proper notice, a prenuptial agreement that provides that each spouse’s earnings and acquisitions during the marriage will be his or her separate property may prevent creditors of one spouse from taking the earnings and acquisitions of the other.
Parties may contract in a premarital agreement with respect to “any… matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.” Most frequently, however, a premarital agreement is used to alter property rights that would otherwise accrue under California community property laws once the parties marry.
Prenuptial agreement lawyer is clarifying what Can Prenuptial Agreements Cover
Under California law, in a premarital agreement, a future husband and wife may agree on any matter they wish, as long as the topic doesn’t violate any law or public policy.
Specifically, prenuptial agreements cover the following issues:
- the right and obligations in any of the property that they own;
- the management and control of the property they own;
- the disposition of their property upon divorce or even death;
- the making of a will or trust;
- life insurance proceeds;
- the state whose laws will govern the agreement; and
- virtually anything else they want.
Since a parent can’t waive their child’s support, spouses can never agree, however, on any child support obligation issue.
Prenups Should Cover These Items If you have smartly decided to get a prenuptial agreement before you marry, there are many areas you may want to cover. You can cover as few or as many of the items as you want. Some of the items may not be relevant to your situation. Be sure that if you follow the list, you will cover most of the key issues.
- Decide how all of your debts will be handled. This includes those debts incurred before you are married and those incurred after you are married.
- Make sure you disclose all of your assets, liabilities, sources of income, and any other potential future assets, such as gifts or inheritances.
- Should you divorce or die, decide who will get your primary residence or any vacation homes.
- Determine what will happen to any assets or property you bring to your marriage. Normally, this will be separate property. But you need to agree with your soon-to-be, what will happen to any post-marriage appreciation, earnings, or proceeds of that property.
- Figure out what will happen, if you divorce or die, to any assets or property you acquire after you get married.
- Clearly state what will happen to each specific type of property, either community or separate. For example, real estate, antiques, jewelry, stock options, and accident settlements.
- Determine the status of any gifts or bequests you receive, either before or after marriage. These should be separate property, but questions may arise when a gift is given to a couple after marriage. A good example is a gift by one spouse’s parents of a down payment on a house. Is that a gift to the couple or just to their child?
- Although any provision for child support won’t be binding later, you can provide for spousal support (alimony) in your prenup. Understand what is reasonable for both the payor and the receiving spouse.
- Set forth the beneficiary of all retirement plans (e.g. 401(k)s, pensions, IRAs) in the event of your death. Also, clarify how the plans will be divided upon divorce.
- Clarify who will provide health insurance for your children and how the costs will be shared.
- Clearly state what state’s laws will apply and how a move to another state will affect the prenup.
- Make sure your prenuptial agreement lawyers are identified. Have them explain each provision in the prenuptial agreement and try your best to understand what it all means. Don’t be afraid to ask questions.
- Agree upon what happens to your pets in the event of your divorce. Who gets custody and will there be visitation rights?
- Include a clause that requires the one who challenges the validity of the prenup to pay all of the other spouse’s fees, regardless of the outcome. You can also make the challenger give up something of value they might be getting under the prenup.
Prenuptial agreement lawyer is warning you about the defenses to prenups.
Your prenuptial agreement lawyer should emphasize your attention that there are 2 major defenses to the enforcement of a prenup.
There are 2 main defenses that can be used to try to avoid being held to a prenuptial agreement.
The burden is on the party trying to get out of the prenup to prove that the agreement was not made (1)”voluntarily” or it was (2)”unconscionable.”
The reason behind these defenses is that the party who was asked to sign the prenuptial agreement must not have been forced into signing it.
First, in order for the prenup to be made “voluntarily,” the court must find that:
(1) the party against whom enforcement is sought had an attorney or expressly waived an attorney;
(2) the party against whom enforcement is sought had at least a week between the time they were first given the prenup and the time it was signed. Usually, this means that there was at least a week before the wedding;
(3) if the party against whom enforcement is sought was not represented by an attorney, they understood exactly what rights they were waiving. That explanation of what they were waiving must be in writing;
(4) the prenup was not signed under duress, fraud, or undue influence and the party had the capacity to enter the agreement; and
(5) any othert factors the court believes are important.
Although it is not a good idea to get your spouse to sign a prenup without an attorney representing them, it is not fatal to the agreement’s enforcement.
But they must have received the proposed agreement and the advice to seek independent legal counsel at least 7 days before signing the prenup. They must sign a document waiving the rights to see a lawyer and a document acknowledging what rights they were giving up, and who provided that information.
The second defense is that the prenuptial agreement is not “unconscionable” when it was signed.
Before signing, therefore, the spouse trying to escape the prenup must show:
- they were not provided a fair, reasonable, and full disclosure of the other party’s property or financial obligations;
- they did not voluntarily and expressly waive, in writing, any right to such disclosure beyond that provided; and
- they did not have, and could not reasonably have had, an adequate knowledge of the other party’s property or financial obligations.
Thus, disclosure or a waiver of disclosure in the premarital agreement may be crucial to the agreement’s validity.
Usually the parties exchange lists that disclose each party’s assets and obligations.
One issue regarding the lists is whether the parties should include values for items that may be difficult to get a precise value, like a business.
If there is no disclosure of value, the spouse may try to claim that there was incomplete disclosure. If the value is disclosed but is wrong, the prenup may also be attacked.
The parties might be able to avoid these issues by acknowledging that the values provided are only estimates.
Call prenuptial agreement lawyer at 714-390-3766