A prenup, or prenuptial agreement, is a legal document created before entering into a marriage. A prenup can include many provisions, but usually it provides for the division of property and spousal support in the event of the legal dissolution of a marriage. In some states, prenups also include provisions for the forfeiture of assets if the marriage ends in divorce because of adultery, and conditions of guardianship in the event of divorce. Prenups affect alimony payments, property rights, and other assets after a marriage ends. Prenups are also made in the event of death of one partner in a marriage.
Properly Drafted and Executed Prenups
In the US, some prenuptial agreements can be circumvented if it is found that they are not properly drafted and executed. In the state of California, a properly drafted and executed prenup is very powerful. There are five factors that constitute a valid prenup in most jurisdictions in the US:
- Must be in writing. Some couples make oral prenups, but they are mostly unenforceable in a court of law. Any marriage lawyer will strongly urge both parties to draft a prenuptial agreement in writing, signed by both parties.
- Must be entered into and executed voluntarily. Couples should take steps to prove that the agreement was voluntary. Some couples retain a private judge present during the signing to ensure that neither party has been coerced, and, to show proof of this.
- Full and/or fair disclosure when the agreement is officially entered into.
- Cannot be deemed unconscionable. This provision typically involves the guardianship of children, who are very often negatively affected by divorce.
- Must be officially executed by both parties, as opposed to their attorneys. Both parties must agree to a legal acknowledgement before a notary public for the prenup to be valid.
Prenups in California
Prenuptial law in California varies slightly from other states because it does not recognize penalties for adultery or using recreational drugs that are common in many prenups in other states. Californian courts will also refuse to enforce requirements that children be raised in a certain religion and other requirements written into a prenuptial contract. Couples can waive their rights to share communal property in California, and prenups can limit spousal support to one party or another unless a court rules that support limitations are unconscionable.
Why You Need a Lawyer
There can be many legal pitfalls surrounding prenups, especially in California, where these agreements are considered very powerful. Any contract that you sign, prenup or otherwise, should be read first by a lawyer who can watch for any improprieties and ensure that the contract is legal and benefits you. In California, there are special requirements for those signing prenups without legal representation. You cannot limit spousal support without a lawyer present at the signing, for example. If you wish to call for the payment of a lump sum at the time of divorce, Californian courts may deem the agreement null and void. Lump sum payments at the outset of divorce have come under attack recently in Californian courts because it has been ruled that it promotes divorce. There are many small nuances to prenups that most lay people miss.
Divorce attorneys help negotiate the terms of a divorce in accordance with the prenuptial agreement. Make sure that you get the best legal counsel when negotiating such a personal and sensitive legal issue. Both parties are encouraged to have legal help when navigating the legal terms of a divorce settlement. Figuring out where the prenup fits into those negotiations is the key to an amicable settlement for both parties.