Without an agreement about how your property is divided, legal costs could erode or destroy your finances if you get divorced. Pre-nuptial agreements used to be something that was only for the very wealthy, but they are now recognized as a prudent way to create a financial blueprint to follow in case the marriage ends. If you’re bringing assets into your marriage or plan to put your career on hold to take care of children, you should be proactive and to speak to an experienced California pre-nuptial agreement attorney about drafting and executing an agreement. If your future spouse presents you with a pre-nuptial agreement, you should NEVER sign it without having it reviewed by an attorney that can ensure that it protects your interests. Envision Family Law LLP has an elite and reputable team that possesses the legal acumen to lead you through all facets of your family law needs.
What Is A Pre-Nuptial Agreement?
A pre-nuptial agreement is a contract that’s signed by future spouses prior to their marriage. It outlines how assets and debts will be divided if there’s a divorce, greatly reducing the necessity of a long and drawn-out legal battle where the court is asked to make these determinations. It starts with a list of the assets and debts that each person is bringing into the marriage, and how they will be treated upon divorce. For example, if you own a home, a business or have received an inheritance, you could designate that property as separate in a pre-nuptial agreement, ensuring that you can leave the marriage with those assets. If your spouse comes into the marriage with student loan debt, it could be classified in a pre-nuptial agreement as solely your spouse’s debt, ensuring that you won’t be responsible for payments should the marriage end.
California Pre-Nuptial Agreements and Children
A pre-nuptial agreement cannot be used to determine child custody because that decision must always be what’s in the best interests of the children, and not simply what the parents prefer. California will not allow the waiver of child support or the reduction of child support below the state guidelines in a pre-nuptial agreement, but it does allow for the provision of more child support than the state mandates. This can be useful if one of the spouses is planning to put their career on hold to care for children and is concerned about maintaining the children’s lifestyle if the marriage fails. It’s also possible to plan for payments for college, for a child’s special needs or for a child’s talents such as music or sports. An experienced California pre-nuptial agreement attorney can help you draft a pre-nuptial agreement that protects your interests.
What’s Required For A Pre-Nuptial Agreement In California?
Knowing what property you’d like to protect and what financial arrangements you’d like is a great way to start planning a pre-nuptial agreement, but can’t protect you unless it’s legally enforceable. These are some of the requirements for a valid pre-nuptial agreement in California:
- Mental competency;
- No undue influence;
- Both parties must either be represented by counsel or sign a waiver;
- Cannot be unconscionable;
- Meet the requirements of California Family Code Section 1615, requiring that seven days elapse between being presented with a pre-nuptial agreement and it’s signing.
For example, if you or your spouse suffers from a serious mental illness, it would be prudent to have a treating psychiatrist sign off on competence at or around the time the agreement is executed. Undue influence might be a situation where a spouse is about to be evicted and their future spouse conditions paying the rent on the signing of the pre-nuptial agreement. Unconscionability is when a contract is so lopsided that it’s completely unfair to one party, such as a “poison pill” provision where infidelity would lead to one party getting all of the property. Your pre-nuptial agreement only protects you if it’s properly drafted and executed, so it’s important to work with an experienced California matrimonial attorney that knows how to get the job done right.