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The Divorce Process
Prenuptial Agreement
Do I need a prenuptial agreement?
A prenuptial agreement is an agreement between two people that addresses the financial consequences of their marriage ending. Many people want to have control over the financial division, in the event of a divorce or separation. There are certain areas where a prenuptial agreement is important:
1. You are much wealthier than your partner.. The agreement can ensure that your "separate property" remains separate and anything derived from those assets are also separate property. The community property presumption provides that anything that is acquired during marriage is generally community property and should be divided equally. Provisions can be added to the agreement that your separate property would remain separate property despite the community property presumption thus changing California law, which is acceptable.
2. You earn much more than your partner. A prenuptial agreement can be used in many states to limit the amount of alimony that is paid. The parties can agree ahead of time about the length and the amount of support. One of the questions or issues that come up frequently is: If my spouse cheats can I have a prenuptial agreement that says that they do not get spousal support. California law provides that it is a "no-fault" jurisdiction and the agreement cannot circumvent the grounds for divorce. So this provision cannot be included in the agreement. It is important that you contact our office to discuss your options and the appropriate plan or to discuss the potential consequences of your agreement.
3. You are remarrying. When you remarry, your legal and financial concerns are often very different than in your first marriage. You may have children from a previous marriage, support obligations, and own a home or other significant assets. A prenuptial agreement can ensure that when you pass away, your assets are distributed according to your wishes, and that neither your first family, nor your new family is cut off. A prenuptial agreement is often a part of larger estate plan including a living trust or will. There are many issues that we need to discuss as it relates to a prenuptial agreement and your estate plan.
4. Your partner has a high debt load. If you are marrying someone with a significant debt load, and you don't want to be responsible for these debts if your marriage ends, then a prenuptial agreement can help ensure that this does not happen. For instance, I prepared a prenuptial agreement for a couple where the husband had many outstanding medical bills. The agreement was drafted so the wife would not be responsible for her husband's medical bills that were incurred prior to their marriage.
5. You own part of a business. Without a prenuptial agreement, when your marriage ends, your spouse could end up owning a share of your business. Your business partners may not want this to happen. A prenuptial agreement can ensure that your spouse does not become an unwanted partner in your business.
A prenuptial agreement cannot take the court's power or discretion away with respect to custody, visitation and child support. We cannot have any provisions about your kids or child support in a prenuptial agreement.
Please contact our office today to discuss your options regarding a prenuptial agreement. We can draft a prenuptial agreement tailored to your specific needs and desires. We often prepare a prenuptial agreement for a flat fee. If your spouse has presented you with a prenuptial agreement and you want legal advice about the legal consequences, please contact our office to set up a consultation to discuss your options.
