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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.

Meet Your Dedicated San Diego Family Attorneys
Family Attorney John N. Griffith, CFLS
Family Attorney John N. Griffith, CFLS

Family Attorney, John N. Griffith, CFLS

John Griffith has practiced exclusively in the area of family law since 2009. John is a Certified Family Law Specialist certified as an expert in the area of family law by the California Board of Legal Specialization.

858-345-1720
john@gylfamilylaw.com

Family Attorney, Catie E. Young, ESQ.
Family Attorney, Catie E. Young, ESQ.

Family Attorney, Catie E. Young, ESQ.

San Diego family lawyer Catie Young has a wide range of litigation experience. She has worked in civil litigation. She has successfully represented clients in many areas of family law including child support, child custody, divorce and domestic violence. She has a unique approach to each child custody case, so clients of Griffith, Young & Lass tend to gravitate toward her in these cases.

858-345-1720
catie@gylfamilylaw.com

Family Attorney Amy J. Lass, Esq.
Family Attorney Amy J. Lass, Esq.

Family Attorney, Amy J. Lass, Esq.

Amy Lass was born in New York and raised in San Diego, California. Amy graduated from Cal Poly, San Luis Obispo in 2003 with a B.S. in Economics with a concentration in Enterprise Accounting and went on to earn her law degree from Thomas Jefferson School of Law and graduated cum laude in 2006. Amy takes a practical and cost considerate approach to the process while striving to balance the emotional needs and objectives of her clients.

858-345-1720
amy@gylfamilylaw.com

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The Typical Divorce Process in California
Discovery of Assets & Obligations (1-3 months)
1 Complaint for Divorce Filed Start of litigation
2 Complaint is Served Varies, but usually shortly after the complaint is filed
3 Answer to Complaint Due 30 days from the date of service
4 Mediation Anytime, but usually after initial discovery
5 Temporary Hearing Usually early in the process
6 Late Case Evaluation / Judicial Hosted Settlement Conference Usually near the end of the case
7 Trial (If Needed) The goal is to settle, but if your case goes to trial, it could take months after the start of litigation.
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I am beyond grateful for the entire staff at Griffith, Young, and Lass. I don't even call myself a client anymore, they are my friends that protected my family and fought with me, side by side.-Erik H., San Diego