Prenuptial Agreements

Prenuptial Agreements

Basics

A prenuptial agreement is a contract entered into prior to marriage or a civil union that keeps property from before marriage as separate property and avoids the creation of community property during marriage. This avoids commingling of assets and debts and if executed properly, will be effective upon a dissolution. An easy way to understand a prenuptial agreement is to think of it as, “what’s yours is yours and what’s mine is mine, and what you earn or accumulate during marriage is yours too.”

California is a community property state, which means that assets and debts that are incurred during marriage are considered community property; regardless of whether title is in one spouse’s name only. Therefore a prenuptial agreement can help prevent the classification and accumulation of community property during a marriage.

Benefits of a Prenuptial Agreement Prior to Marriage

When at attorney drafts a prenuptial agreement, he or she will ask both parties to list all their assets and debts in order to figure out their net worth and debt. This exercise in itself is highly beneficial, because it forces both parties to see how much the other is worth and what kind of debts they have prior to marriage. I often hear spouses during a divorce say that they had no idea the other spouse came into their marriage with so much debt or money and this is because people often times avoid that discussion.

The benefits of knowing exactly what each party is bringing into the marriage financially can lead to more trust, more understanding and present a clearer picture to both spouses about their respective financial positions in life.

Frequently Asked Questions

Can a Pre-Nuptial Agreement Limit Child Support Payments?

It is important to know that prenuptial agreements can vary widely. However, there are a few terms that are not enforceable. Parties cannot limit or waive child support payments in a prenuptial agreement. In California, it is also generally unenforceable to have “at-fault” provisions in a prenuptial agreement that bar spousal support if there is infidelity in the marriage, etc.

California is a “no-fault” state, meaning that the State generally speaking does not care what the reasons for divorce are when parties file a dissolution. The law is just concerned with helping the parties start the next chapter of their lives without revisiting the reasons for a break-up.

Can a Pre-Nuptial Agreement Limit Spousal Support Payments?

Yes. It is very common to have prenuptial agreements that limit spousal support or bar the payment of spousal support. If executed properly and with the right disclosures, it can be effective.

What if I am already married? Can I still get a prenuptial agreement?

Yes. You can get a “post-marital agreement.” A post-marital agreement is a written contract executed after a couple is married or has entered into a civil union, to settle the couple’s affairs and assets in the event of a separation or divorce. Provisions of the agreement vary widely, but commonly included provisions are for the division of property, spousal support, etc.

The aforementioned is not intended to be legal advice. Contact Dream Law attorney Sanjay A. Paul, Esq. for a consultation on the facts of your case.

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