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Many couples enter into a prenuptial agreement before beginning their lives together. Because of its transactional nature, some couples may be weary of using a prenuptial agreement.
But prenuptial agreements can provide a firm basis for marriage. They allow spouses to discuss financial concerns before entering into the marriage. The agreements may help clarify how the partners pay household bills and debts. And the agreements can prepare for the separation of financial assets if the parties divorce.
Off the Record Mediation Services, LLC can help you draft an enforceable prenuptial agreement in California that enables you to prepare for your future together.
What can a prenuptial agreement protect?
A prenuptial agreement, or a prenup, is an agreement between two individuals planning to marry regarding each person’s property rights. In California, the Uniform Premarital Agreement Act governs prenuptial agreements. The Act limits what parties can and cannot include in a prenuptial agreement. The agreement is valid if it is in writing and both parties sign it. The prenuptial agreement becomes effective once the individuals marry.
According to California’s Uniform Premarital Agreement Act, prenuptial agreements can:
- Protect the rights to properties acquired before or during the marriage
- Distribute property in the event of death, separation, or divorce
- Assign rights to life insurance policies
Therefore, you can use a prenuptial agreement to assign ownership of:
- Property acquired before the marriage by either party
- Property acquired during the marriage, even though California is a community property state, including life insurance and retirement funds
- Spousal support, including the duration and amount of support for either party
- Debts
- Businesses
What can’t a prenuptial agreement protect?
The California Uniform Premarital Agreement Act specifies three situations prenuptial agreements cannot address. Prenuptial agreements cannot:
- Affect the support for a child. Provisions that waive or affect the amount of child support provided to a child are not enforceable.
- Require anything that would be illegal or go against public policy. Provisions, such as deciding child custody or providing a larger settlement if one party is unfaithful to marriage vows, would go against California’s use of the child’s best interest for deciding child custody or the no-fault divorce public policy.
- Limit or waive spousal support. Provisions that limit or waive spousal support are unenforceable if independent counsel did not represent the party with support waived or altered when the parties signed the agreement. Spousal support provisions are also unenforceable if it would be “unconscionable” to enforce the provision when the parties separate.
Whom should you consult if you are seeking a prenuptial agreement?
Begin your marital partnership by thoroughly discussing each other’s financial situations. And start your marriage with the satisfaction of knowing you are prepared for the future and protected your property rights.
Dorit L. Goikhman, the founder of Off the Record Mediation Services, LLC, is a trained mediator providing divorce, probate, and child custody mediation services for high-net-worth individuals in Santa Clara and San Mateo counties. As an experienced attorney, Dorit Goikhman also advises individuals who want to create enforceable prenuptial and postnuptial agreements.
Contact Off the Record Mediation Services today if you need assistance negotiating your prenuptial agreement.