Many people planning for marriage don’t think about planning for divorce. Divorce can be a complicated process of splitting up two lives, especially if there are children in the marriage. There may also be spousal support issues. This is where prenuptial agreements or prenups can help a couple planning for marriage down-the-road should they get divorced.
A prenup is a contract that you sign before you get married. It outlines how the marital assets and debts will be split up in the event of divorce. Generally, it covers the assets each partner brings into and accrued during the marriage as well as the division of marital debt. Prenups can cover any aspect of your finances, except child custody or child support issues, unless the provision is about providing more support than what the court orders such as paying for a college education or supporting an adult special needs child.
California Law and Prenuptial Agreements
California has strict and detailed requirements for an enforceable prenuptial agreement. In California, prenups are governed by the Uniform Premarital Agreement Act of 1986 (UPAA). UPAA sets out certain basic requirements for the agreement to be valid:
- Prenups are subject to the basic rules of contract law.
- Both parties must be mentally competent to consent and must actually consent.
- The agreement is invalid if either party gives consent based on fraud or mistake.
- If one of the spouses is not proficient in English, the agreement needs to be translated to that person’s native tongue.
- If a party wants to waive their right to counsel, they must have complete information about the potential consequences of that decision.
Finally, the agreement cannot be “unconscionable.” It cannot be the result of seriously unequal bargaining power and it can’t unreasonably favor one party. The court will scrutinize a prenup that unduly favors one party.
Special Rules for Community Property
California is a “community property” state. Without a prenup, the property owned by each partner before the marriage will go back to that partner and property accrued or shared during the marriage will be split evenly. A prenup allows couples to treat separate property as community property or community property as separate property. Prenups also allow you to waive or alter your inheritance rights, as long as it won’t negatively affect your minor children.
There are many reasons to sign a prenup. It can help each partner protect valuable assets should a divorce happen. It also allows couples to sit down and decide on a fair disposition of any assets in a calm manner. The prenups makes the divorce process much simpler as many of the complex financial decisions associated with a divorce are made in advance.
The rules governing prenups in California are complex. It is strongly recommended by legal professionals to seek legal advice before you sign a prenup agreement. Speak with a local family law attorney to discuss whether a prenup is the best choice for you.