Ask a Divorce Attorney – Prenuptial Agreements
California law well settled when it comes to the division of assets and debts. The legal framework used in California divorces is called Community property law.
According to community property law, everything acquired from the date of marriage until the date of separation is divided evenly–end of story–unless the parties entered into a valid prenuptial agreement (prenup) or postnuptial agreement (post nup).
Prenuptial agreements serve to change the legal characterization of property from community property to separate property. They seek to avoid the normal rules of division of earnings and assets acquired during the marriage.
Prenuptial agreements must be drafted carefully. Most experienced and qualified divorce lawyers are aware of the rules and requirements of a valid prenupt. A good divorce lawyer that knows and understands the law including the requirements and the limitations of a valid and enforceable agreement.
If a prenuptial agreement does not include the correct language, or if it includes an illegal provision, then it may not be worth the paper that it is printed on let alone the attorney’s fees paid to draft it.
What can I put in a Prenuptial Agreement?
A prenuptial agreement may include limitations regarding the earnings and assets of each spouse acquired during the marriage. It can limit the possibility of a spouse acquiring a share of separate business interests. It can also provide that any debts acquired independently by either spouse be deemed the separate debt of the spouse acquiring the debt.
Special Rules Regarding Limitations on Spousal Support
A prenup can also limit or terminate a potential spousal support obligation. Spousal support provisions are difficult to enforce and may not always be upheld no matter how carefully drafted. For example, if a divorce court holds that a limitation or termination of spousal support is unconscionable, the court may strike that portion of the agreement. Also, if the party that would be giving up spousal support is not represented by a divorce lawyer at the time of negotiating andsigning the prenup, then the spousal support provision will be invalid.
What Can’t a Prenuptial Agreement Do?
A prenup cannot include limitations on child visitation, or child custody. A prenup cannot include limitations or regulate child support. A valid prenup cannot punish infidelity by providing consequences against a cheating spouse. California is a “no-fault” State which means that infidelity is generally irrelevant when it comes to a divorce. A valid prenup cannot regulate the religious freedom of either party or the religious upbringing of the children.
Depending on the issues, some divorces can cost tens and even hundreds of thousands of dollars–not to mention the stress. A prenup can help tremendously, but it must be done correctly.
The San Diego divorce lawyers at Griffith, Young & Lass have experience drafting valid California prenuptial agreements. Our clients have been happy with our approach to the prenup as well as the efficiency by which we meet their needs.
If you are considering a prenuptial agreement and have questions or if you need a qualified divorce lawyer to review an existing prenup call our office for a free consultation 858-345-1720.