Los Angeles Divorce Lawyer offers services to clients who are undergoing family law disputes such as divorce, legal separation, annulment, and any other family law matters. As an important issue that affects divorce elements and marriages, a prenuptial agreement is something you need to understand even if you aren’t planning to marry soon. Also known as a prenup, a prenuptial agreement helps a couple to agree on critical issues such as how to classify their property (whether separate or marital) and inheritance rights. Read on for better insights on prenups in California.
California Laws on Prenuptial Agreement
A prenuptial agreement under California law is simply an agreement that a couple comes up with before marriage. This agreement is found under family law section 1610-1617 and can only be validated after the couple is formally married. Many couples take up a prenuptial agreement, or a prenup as it is commonly known, to evade confusion of how assets are handled in case of a divorce or death in the future.
For a prenuptial to be valid, it has to be signed by both individuals in the presence of their attorneys or a mediator. The law dictates the requirements on what to be included or excluded in a valid prenuptial agreement. The couple should understand that rules of contract law apply not only in the dissolution of marriage but also in a prenuptial agreement. In other words, both parties must give consent of the prenuptial through writing and signing. Lastly, the consent should be voluntary, and no external forces are allowed to coerce the decisions of any party.
During the mediation process, the couple discloses all their financial documents to the mediator before signing the prenup. The couple should be given ample time of more than seven days to enable them to scrutinize the form before signing the final draft.
As much as the couple has agreed upon a mediator, it is imperative for each party to have a personal lawyer who will guide them in reading and understanding the prenuptial agreement. However, some people may forfeit having an attorney. This is only done by signing a document to confirm that both parties fully understand the repercussions of foregoing an attorney. Once the above requirements are understood and met by both parties, the mediator starts the prenuptial agreement process.
What is Included in a Prenuptial Agreement?
A prenuptial agreement contains three main areas that are legally binding. They include;
Waiving your Rights to Spousal Support
A couple seeking a prenuptial agreement has the right to agree that no alimony will be paid in the event of a divorce, legal separation or annulment. However, if the mediator feels that the total withdrawal of spousal support will adversely affect one individual to the point of poverty, then these rights are immediately revoked, and the provision of the spousal support reinstated.
Review of Property Division Matters
Before the couple signs a prenuptial agreement, they should review the marital and separate property. Marital property is any form of property acquired by any of the spouses during the marriage and is recognized by the law. On the other hand, separate property is a property that either of the spouses acquired individually.
The California family law states that when a couple gets married, all the property owned before and after the marriage is community property. One of the parties may decide to include a property that they owned before the marriage as community property, and this property is treated as community property afterward. However, marital property can be reversed to separate property as well.
During mediation, it is a requirement for the couple to disclose their property, financial documents and even debts owed. This helps in splitting the property equally. A couple can request that the property is divided into 60/40 or any other ratio they may deem comfortable.
Inheritance Rights Changes
A will contains all the inheritance divided according to the wishes of the deceased. However, this can be modified to meet the terms of the agreement. The laws of California uphold children’s rights, and if a child is neglected or unfairly represented, then the court revokes these changes.
What is Excluded in a Prenuptial Agreement?
There are several provisions that California cannot include in a prenuptial agreement.
Child Support Duties
A prenuptial can alter inheritance rights and review property division matters. However, it cannot interfere with child visitation rights, child support or child custody. The mediator informs the couple that every other thing can be altered apart from the issues affecting the children. If the court feels that the children are affected negatively by the prenuptial, it takes jurisdiction of the matter and acts in the children’s best interest regardless of the prenuptial agreement. The only way that child support duties can be revised is by adding more contribution to child support.
California Public Policy
All prenuptial agreements should follow the state or federal laws. This is why couples are advised to engage a mediator who is qualified and understands the laws and the system of governance of the state.
A Fault Clause
California is a no-fault divorce state meaning you cannot blame your partner for your failed marriage. This clause focuses mainly on issues of infidelity. The parties assume that once they get married and one of the spouses is unfaithful, then the cheating spouse will have to pay more spousal support or lose everything altogether. This is not applicable in California thanks to the “no-fault” law.
Change of Marriage Duties
Marriage brings with it certain privileges and duties. This is defined clearly under California state laws. These duties and privileges cannot be altered by anyone to fit their personal gains. Therefore, a mediator who completely understands family law is quite efficient since most of these challenges will be avoided; hence, guaranteeing a valid prenuptial agreement.
The mediator informs the couple that any terms that may encourage a divorce cannot be included in the prenuptial. As earlier mentioned under the fault clause, California does not allow its laws and those of the federal to be violated or ignored for personal gains. The mediator needs to explain to the couple that a single term may invalidate their prenup and so they ought to be practical about it.
When Can a Prenuptial Agreement be Invalid?
- Lack of legal counsel: Under the requirements of a prenuptial agreement, it is mandatory that both parties have separate lawyers who will advise them accordingly and will be present while they sign the agreement. If the couple opts for a single lawyer or none at all, this can invalidate the prenuptial. However, one of the spouses can choose to waiver legal counsel due to personal issues, for instance, financial incapability. In this case, you must inform all parties in writing.
- 7 days waiting period: After the couple signs the prenuptial, the laws provide for 7 days waiting period to give them ample time to scrutinize the agreement. This time should be utilized with their respective attorneys trying to finalize and edit the terms to suit each party. Failure to honor this 7 day period can invalidate the prenuptial.
- Lack of full disclosure of terms: During the opening statements with the mediator, it is required that the couple discloses all their property, debts owed and any other property outside California. If one spouse fails to do so and the other spouse suspects it, this will automatically invalidate the prenuptial agreement.
- Voluntary agreement: Prenuptial agreements should be voluntary and not made under any form of duress, intimidation or threats. If the court or the mediator determines that the consent was given due to threats, undue pressure or duress, then they will invalidate the agreement immediately.
- Fraudulent signing: Sincerity and legitimacy are the most critical elements in any prenuptial agreement. Each spouse should provide the right information, documents, and testimonials. If a spouse signed the prenuptial under pretense, this prenuptial becomes null and void.
- Undisclosed property: We understand that any property owned before and after marriage becomes community property, meaning that it will be equally divided. As a result of this law, a spouse may fail to disclose a specific property or properties, and this may result in an unenforceable prenuptial.
- Lack of legal capacity: This simply means that the spouse did not understand what the requirements were and did not comprehend what was taking place. This lack of understanding may cause a prenuptial to become unenforceable.
Frequently Asked Questions on Prenuptial Agreements
I am getting married, do I need a prenuptial agreement?
Lately, it is increasingly common for couples to come up with familial agreements to safeguard their property, objectives, and values. California has specific provisions in cases of property division or death of a spouse. These provisions may be unfavorable to one individual, and only a prenuptial can lessen the burden and conflict that may arise afterward.
My fiancé asked me to sign a prenup, doesn’t he trust me?
No couple would want to get divorced, but there are irreconcilable differences that may lead to filing for one. With this in mind, it is recommended to have prenuptial. A prenuptial improves family relationships since everyone’s interest is safeguarded. Therefore, a prenup is about protection of interests not about trust. A spouse may want to provide for his or her children from a previous marriage and enjoy the love of their children. This becomes very easy, especially when a prenuptial agreement is in play. For instance, in case a step-parent comes into the picture, both the parents and the children will have peace of mind and enjoy their lives. Your fiancé is acknowledging the risks of divorce and hence, wants to ensure that there is an equal division of property way in advance, instead of waiting for the courts to decide for you.
Can a couple that does not own assets have a prenuptial?
Young couples who have just started their lives and don’t own assets or property feel that they do not need a prenuptial. However, it is crucial to understand the details of a prenuptial even if you are not planning to have one soon. Money issues are usually very sensitive, and it is good to have details of the little property you have. Remember, it is better to decide on better property divisions before marriage rather than during a divorce.
Which is the best time to ask for a prenuptial?
This should be as soon as possible. Mostly, it should be done when he or she proposes or when you both decide you want to get married. Some couples may delay because they are uncomfortable and they don’t want their partners to think they do not trust them. A couple seeking to take a prenuptial may underestimate the amount it takes for it to be finalized. Keep in mind that the 7 days or more waiting period can collide with wedding plans and as a result, become strenuous to the couple as they have to juggle between the court, the wedding planner and wedding invitations.
Is a prenuptial for the rich?
Absolutely not. A prenuptial agreement is voluntary, meaning you are not forced into having one. Part of the requirement that may uphold a prenuptial is the disclosure of assets. As a result, the court will validate the prenuptial even if it is unfair to the other party. This is the reason why the couple is advised to have separate lawyers to guide them accordingly. The lawyer will help explain to the economically weaker spouse that he or she cannot change the terms unless the other party agrees.
My lawyer will draft our prenuptial agreement, and my fiancé does not have a lawyer. Does this invalidate the agreement?
No. If your fiancé has signed a waiver of legal counsel, then it is valid. It is a requirement that each one gets a separate lawyer, but if there is a waiver, it is ok. However, your fiancé should be aware of the repercussions of not having legal representation, especially if there is a disparity in income and property. He or she needs to understand that changes cannot be made in case of economic hardships of one spouse unless the other party gives consent to changes.
Can a prenuptial agreement give joint custody for the children?
Yes, it can, but it is not binding. If the agreement does not favor the children, especially if they are minors, the court can intervene and decide on the custody and determine the obligations to be met by both parents.
We have children from our previous marriages. We want a 50-50 property division. Can we have a will instead of a prenup?
No. You may stipulate this in the identical will that you want an equal property division of your acquired assets to your children. In the event of death, the surviving spouse may rewrite the will and leave all the inheritance to his or her children. This ensures that no one else will benefit from the property. A pre-nuptial is a contract that is binding to both parties even after death. If you plan to leave all your assets to both sets of children, you need a binding agreement and a will.
How much financial disclosure is required?
Under the requirements of a prenuptial, the disclosure of property is required. The more the property is disclosed, the easier it becomes for any party to challenge the validity of the agreement later. Therefore, the standard method involves writing down a list of assets, debts, income and any other financial report that is necessary.
We have both agreed on what is to be included in the pre-nuptial. Can we use the same lawyer for our prenuptial agreement?
No. Even if the couple has decided on what should be included in the pre-nuptial, separate legal counsel is required. An agreement that may seem fair at the beginning may have unexpected consequences later on. This is why each individual needs a lawyer to get independent advice about their rights and a 7 day period in order to scrutinize the document before signing it.
We are a same-sex couple planning to get married. Can we have a prenuptial?
The state of California recognizes same-sex marriages and therefore, recognizes the prenup of same-sex couples. The requirements are the same as those of opposite-sex marriages. However, In this case, children are not a part of the agreement, unless the couple decides to adopt a child legally.
Contact an Attorney Near Me
A divorce is an experience that any couple planning to get married may not want to face. Divorce is typically accompanied by complex proceedings, emotional stress and a variety of related issues to both parents and children. As a result, you will need help to deal with the overwhelming emotions that come with it. The Los Angeles Divorce Lawyer is here to ensure you get expert legal advice on issues related to divorce, including how prenuptial and postnuptial agreements can affect your divorce. We understand that agreeing on inheritance rights, spousal support, and division of property early before you get married will help reduce most complications in the result of a divorce. Get in touch with us today at 310-695-5212 to speak with us regarding prenuptial agreements.