If you are planning on getting married and you have accumulated a significant amount of property or savings, you might be wondering if a prenup is a wise move. A prenup, or prenuptial agreement, can provide you and your spouse-to-be with a clear picture of what will happen to your property and finances should the two of you split in the years to come.
California follows the Uniform Premarital Agreement Act (UPAA), which was signed into law in 1986. The law states that written prenuptial agreements that are signed by both parties will become active the moment the couple marries. The agreement will establish guidelines regarding the couple’s present and future property rights, and any other matters related to the union.
One thing a prenuptial agreement cannot cover is a child’s right to support, nor can a prenup remove the court’s power to control child custody and visitation following marriage dissolution.
The principles of a prenup closely follow those of contract law, which means that all agreements must have valid consent. This means that the party signing must have the mental ability to consent to the agreement, and the consent cannot be the result of fraud or undue influence. Nor can a prenup be signed by mistake.
Do You Have a Significant Amount of Property and Plan to Get Married? Prenup Could Be a Wise Move for You.
There have been amendments to the UPAA in recent years that have affected the powers of a prenup. For example, a prenuptial agreement can be enforced against a spouse only if the spouse has received complete information about all property and finances belonging to the other spouse before signing the agreement.
The signing spouse must also have had at least seven days between first receiving the document and signing it. The reasoning behind this aspect of the law is to give the person adequate time to consult with a qualified family law attorney.
The spouse signing must be represented by a separate attorney as the other spouse when signing the agreement, unless the spouse received information in writing about all terms and effects of the agreement, including all rights and obligations the agreement would nullify. Either that, or the spouse must have signed a separate document acknowledging receipt of such information and identified the person who provided said information, and expressly waived the right to an attorney.
It should be noted that, even if all the above terms are satisfied, unless the spouse who signed the agreement was represented by an attorney, any provision of the agreement affecting rights to future alimony payments will not be enforceable under the law.
What Can a Prenup Include?
As long as the above requirements are met, you as a couple can agree to modify or give up rights to spousal support in the event of divorce. This can be the case as long as the result is not unfair or “unconscionable” at the time of enforcement.
For example, if the situation is extreme, as in one spouse would be forced to go on welfare while the other lived comfortably, the court probably wouldn’t uphold the agreement.
Courts typically only allow couples to waive spousal support when the two are of equal education and intelligence, and both are self-sufficient in property and earnings at the time the agreement is signed.
A prenup can also change the nature of separate or community property. If one spouse owned the house the couple moved into before marriage, for example, a prenup could allow the home to be community property in the event of divorce. Normally, if one spouse owned the home pre-marriage, that spouse would retain sole ownership upon divorce.
Other terms can include inheritance rights and provisions in a will or trust, as long as the terms of the prenup in no way affect the support rights of minor children.
With so many technicalities and room for error, it is advisable that you speak to an experienced family lawyer before considering or signing a prenuptial agreement.
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