Premarital Agreements
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Tustin Prenuptial Agreement Attorney
A premarital agreement, also called a prenuptial agreement or prenup for short, may not be on your mind as you plan a wedding, but a little preparation now could save you a lot of stress later. Simply put, a premarital agreement sets out what will happen with property and finances acquired during the marriage in the event of divorce — and they aren’t only for the extremely wealthy. Settling on the terms within the agreement, however, can be complicated.
If you’re interested in drawing up a premarital agreement, you should consult an experienced family law attorney to ensure your prenup is legally solid and protects you as best as possible.
California Prenups
In California, the Uniform Premarital Agreement Act (UPAA) governs premarital agreements. The Act provides that a prenuptial agreement must written and signed by both parties in contemplation of marriage. General contract principles apply regarding the capacity parties to agree, i.e., they must each have the mental ability to consent and the consent must be given free of duress, fraud, undue influence, or mistake. The agreement becomes effective when the couple marries.
A prenup can cover a variety of issues concerning finances, including present and future property rights and spousal support, also called alimony. For example, a party may waive alimony right in the event of a divorce, and this provision would likely be enforced unless the result is “unconscionable.”
The agreement may even include certain milestones at which point specific provisions kick in, e.g., if the marriage lasts ten years, the lesser-earning spouse may be entitled to a certain amount of alimony.
Moreover, a party can agree to change the character of separate or community property — a very important designation under California divorce law — and also waive inheritance rights in favor of children from previous marriages.
It is important to know that the laws in this area change frequently both statutorily and with court decisions so having an experienced attorney drafting your premarital agreement is crucial.
Issues that Can’t Be Included in Prenup
While prenuptial agreements can cover many issues that may arise between couples upon divorce, they cannot remove the power of the court to decide child custody and visitation rights or negatively affect a child’s right to child support. Couples may, however, agree to provide more support than legally required through a prenup.
Parties may also not waive their rights to share in an ERISA-governed employee benefit plan or agree to anything that is against public policy or illegal.
If you’re considering a prenup, it’s time to consult an experienced family law attorney who can walk you through the process and make sure your interests are protected.
Most importantly, the procedures involved in negotiating, drafting, ratifying and executing a premarital agreement are crucial in avoiding pitfalls that may give rise to a future challenge.
