San Diego Prenuptial/Postnuptial Agreements Lawyer
Enough modern marriages end in divorce that it’s hard to say that marriage is forever. And if it’s not forever, should the people embarking on it be making specific plans for its demise—even before they tie the knot? A growing number of couples are saying yes, and signing a formal prenuptial contract governing property and other rights before they say their “I do’s.”
Formal agreements signed after the marriage are also increasingly common. These postnuptial contracts address some of the same issues as prenuptial contracts, but tend to go further, often specifying narrow details of how the spouses will treat each other and share the marital burdens.
How Will a Prenuptial & Postnuptial Agreement Attorney Help?
A marriage is a legal contract between two people. In some cases, the two spouses decide to also employ a second type of contract – a prenuptial or postnuptial agreement. These contracts can protect one or both spouses in the event of a divorce. It is critical to hire an attorney for assistance if you wish to create a prenuptial or postnuptial agreement in San Diego. Only an attorney will have the knowledge, information and experience to craft a legal document that will properly protect your rights and stand up in court.
An attorney can help you with a prenup or postnup in many ways. Your lawyer will understand all of the laws related to these agreements in California. He or she can make creating a prenup or postnup easy. Your lawyer can also improve the chances of reaching an agreement with your spouse. He or she will make sure the agreement properly protects your rights and assets. Finally, your lawyer can ensure the final document will stand up in court in San Diego. This can help you avoid unwelcome surprises should you ever need to enforce your prenuptial or postnuptial agreement in divorce court.
These days, prenuptial contracts in San Diego are often employed by “ordinary people” to protect their right to determine what happens to their ordinary amounts of wealth.
The Uniform Premarital Agreement Act (UPAA) is the state law governing California prenups since 1986. It requires that written prenuptial agreements are signed by both parties; the agreement automatically goes into effect when the marriage takes place. A premarital agreement can cover a couple’s present and future property rights, as well as other matters, but it cannot include any agreement that might negatively affect matters of child support, child custody, and visitation, which remain subject to court order.
Principles of general contract law also apply to prenuptial agreements. Premarital agreements require valid consent, meaning that a person must have the mental ability to consent, and that consent cannot be the result of fraud, inappropriate influence, or mistake.
The agreements vary considerably in their details, and may extend to completely non-financial issues. A typical “prenup” inventories the assets, asset protection, and liabilities of both prospective spouses, and expressly declares what each spouse’s rights will be to the inventoried items in the case of death or divorce. If executed properly, the terms of the agreement override the laws that would ordinarily apply to determine that.
Prenuptial contracts may also be used to protect the spouses from each other’s debts.
On the other hand, requesting a prenuptial agreement may well get the marriage off on the wrong foot. Despite rational explanations about why the agreement is no big deal, many prospective spouses probably dislike the idea more than they admit.
As with any document that has a property inventory as its foundation, you need to keep track of how accurate the agreement is as time passes. As new property is acquired and old property transferred, the agreement should be updated.
A properly executed prenuptial agreement is a valid contract. The problem is that many people, whether through inattention or deliberate attempt to take advantage, don’t follow the rules. To ensure that a court will enforce the terms of the prenuptial contract, these condition must have been followed when drawing up the agreement against a spouse:
- The spouse must have been provided with complete information about the other spouse’s property and finances prior to signing it
- A minimum period of 7 days must have passed between receipt of the agreement and signing it
- The spouse must have been represented by a separate, independent attorney when signing the agreement, unless the spouse received full information in writing describing the terms and basic effect of the agreement, including an explanation of any rights and obligations the agreement would nullify, and signed an acknowledgement of receiving the document, and waiving the right to an attorney (probably not a good idea!)
Postnuptial agreements are a lot like prenuptial agreements under California law, except they are signed after the marriage has taken place. In many instances, they are prompted by actual marital problems, and represent attempts to settle those problems before a divorce becomes inevitable.
Postnuptial agreements may address financial matters of all kinds, especially if one spouse has had a major change in finances since the wedding took place. They are also more likely than prenuptial contracts to impose terms governing the specific behavior of one or both spouses. Adultery is one common subject. Wasting the family’s money on such things as shopping, gambling, and drugs are others.
Enforceability of Postnuptial Agreements
Postnuptial agreements may be challenged on the same bases as prenuptial contracts: sufficient time to evaluate the agreement, full disclosure of pertinent information, and independent legal advice.
What Can Be Included in a Prenuptial or Postnuptial Agreement?
The California divorce courts limit what can and cannot be included in a prenuptial or postnuptial agreement. It is important to follow these rules if you wish to have a valid legal contract. In general, these agreements cover the subjects of property division, spousal maintenance and estate plans. Property division is the most common reason for a couple to sign a prenup or postnup. This is especially true in California, which is one of the only community property states in the country.
Under California’s property division law, the courts will split a couple’s marital property 50/50 at the time of divorce. Prior to marriage, therefore, it is common for the higher-earning spouse to make the lesser-earning spouse sign a prenuptial agreement to protect the former’s assets. These agreements can limit one spouse’s debt liability, keep family property in the family, protect a family business, ensure future inheritance goes to beneficiaries, ensure the carrying out of an estate plan and organize property division outside of California’s 50/50 law.
A prenuptial or postnuptial agreement can also give one or both spouses certain responsibilities during the marriage. For example, one spouse can protect his or her right to manage the household bills and expenses, manage a joint bank account, and keep a previously owned business part of separate property. A spouse can also manage investments, credit card spending and savings contributions. Finally, a prenup or postnup can create terms for settling potential disagreements, such as requiring mediation or arbitration before going to trial.
What Can’t Be Included in a Prenuptial or Postnuptial Agreement?
Certain language or terms in a prenuptial or postnuptial agreement will void the contract or fail to be upheld in divorce court. An agreement is a legal contract and therefore must comply with legal standards in the language it uses. A prenuptial or postnuptial agreement in California cannot have provisions requiring one spouse to do anything illegal. It also cannot include unreasonable requirements, such as requiring a wife to conceive a male heir or maintain a certain weight during the marriage. These types of terms will not be upheld by the courts during a divorce case.
A prenup or postnup also cannot include terms regarding child support or child custody. These are matters the court will decide based on the best interests of the child. Since it could broach the child’s rights to settle these terms with a prenup or postnup, the courts do not allow a parent to include these terms. The court will always have the power to determine child support and custody according to the child’s best interests in a divorce case. Finally, a prenuptial or postnuptial agreement cannot have provisions that encourage divorce or waive a spouse’s right to alimony.
Legal Help in Drafting or Enforcing a Prenuptial or Postnuptial Agreement
Prenuptial and postnuptial contracts both require legal review to be enforceable. The consequences of signing are significant and permanent—remember, you are letting the terms of the contract replace other legal rights that you have. Before you sign, talk to a lawyer who understands these contracts. For example, why not include a term that adjusts the property as the marriage endures longer? Or have the agreement automatically terminate after a set number of years of marriage?
Protect your rights by getting an expert legal opinion before you sign by calling the Boyd Law Firm family lawyers in San Diego. We care, and we know the law.