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Given the prevalence of divorce, prenuptial agreements are an increasingly popular way for people to protect assets in the event of a divorce. Most people believe that only celebrities have reasons to have a prenuptial agreement. However, prenuptial agreements are made for anyone that has any assets that need protection in case of divorce. Some agreements also address estate planning issues, alimony, asset management during the marriage and responsibility for debt. Entering into the agreement at or near the time of engagement is highly recommended. In this blog, we will explain the basics of prenuptial agreements by looking at California Family Code Sections 1612 and 1615.
Who Needs a Prenuptial Agreement?
You should consider having a prenuptial agreement if you fall into any of the following categories:
- 1.You own a home, stocks or retirement funds
- 2.Own all or part of a business
- 3.You anticipate receiving an inheritance
- 4.You have children or grandchildren from a previous marriage
- 5.One partner is much wealthier than the other
- 6.One partner will be supporting the other through college
- 7.You have loved ones who need to be taken care of, such as elderly parents
- 8.You have or are pursuing a license in a potentially lucrative profession such as medicine
- 9.You could see a big increase in income because your business is taking off (Wikipedia)
Family Code Sections 1612 and 1615
Family Code Section 1612 sets out what can and cannot be in a prenuptial agreement. Generally, any financial issue can be dealt with in a premarital agreement. Issues relating to children, including child support and custody are not permitted. Nor is one allowed to contract about duties during the marriage, such as household chores, frequency of sexual relations, or penalties for adultery.
California has special provisions regarding spousal support in prenuptial agreements. In California spousal support provisions in a prenuptial agreement drafted at this time will not be enforced unless the person whose receipt of spousal support is limited or waived had independent counsel before entering into the agreement. As well, provisions regarding spousal support will not be enforced if they are unconscionable at the time of enforcement. The unconscionable standard is somewhat ambiguous and it is unclear what will circumstances would make a limitation or waiver of support unconscionable. One such circumstance might be a disability that precludes the spouse waiving support from working. As a result it is impossible to determine in advance whether a spousal support provision will be enforceable at the time of separation, as changing circumstances prior to separation might render the agreement unconscionable.
Probably the most important part of the California Uniform Premarital Agreement Act is found in section 1615, which sets out when a prenuptial agreement is enforceable, and when it is not enforceable. The usual caveats apply here: there must be financial disclosure, the premarital agreement must not be unconscionable, there must not be any coercion, and the parties must understand what they are signing. California requires that there be at least seven days between when a party is first presented with an agreement and when the agreement is signed. To have an enforceable prenuptial agreement it is generally a good idea to ensure that both partners are represented by competent counsel.
Prenuptial agreements can include responsibilities that do not deal with money, but one should avoid making demands that might seem frivolous, such as requiring that a spouse not gain weight, or that he or she quit smoking and take out the garbage three times a week. A judge could look suspiciously upon terms that are less serious than, say, stipulating what religion your children will observe if the spouses are of different faiths (law.onecle.com).
Difficult as it may be to talk about money before marriage; doing so can save heartache and hassles in the long run. A prenuptial agreement can minimize the financial and emotional toll of a divorce. Couples without a prenuptial agreement will have their assets divided by a judge if the marriage ends and the parties disagree about who should get what.
Without a prenuptial agreement, assets could end up in the hands of your spouse's children from a previous marriage instead of your own kids, or they could go to a partner who did nothing while you worked away at a business or book that eventually became a big success.
Premarital agreements are a personal decision, but without one, couples relinquish not only power over their assets but privacy as well (leginfo.ca.gov).
If you have any questions about a prenuptial agreement, please contact The Law Office of Matthew J. Rudy for a free 1-Hour Consultation.