FAQ: Pre-nuptial Agreements
- Are you required to have a prenuptial
No, you are not required to get a prenuptial agreement. If you do not have a prenuptial agreement, California Family Code will regulate your rights during and after a divorce or separation. But who wants to trust his or her valuable property rights or child custody issues to Mr. Law? And how many people know how the law will change in the next 20 years? If family law were simple and clear, why would we need to hire great attorneys? High-quality attorneys are needed because many family law issues can arise and become complicated.
Why would I want a prenuptial agreement?
A prenuptial agreement is a wise choice, especially if a substantial amount of separate property is involved. It is better to anticipate and prevent undesirable consequences than to leave them to be managed during a divorce process when emotions are running high. I recommend initiating the prenuptial agreement process right after the marriage proposal.
What requirements are there for a prenuptial agreement?
Prenuptial agreements must be in writing and signed by both parties. There are occasional rare exceptions. If you think you might have an exception, please contact me or another attorney so that we can discuss your situation.
The parties must have at least seven days between when they first receive the agreement to sign and when they actual sign it.
The parties must each have independent legal representation or must expressly waive that right in a separate document.
If a party is not represented by a lawyer, he or she must be aware of the basic terms of the agreement and the rights and obligations her or she is giving up. The party must be proficient in the language the agreement is written in and the explanation is given in.
What isn’t allowed in a prenuptial agreement?
A waiver of child support for minor children of the marriage. Child support is considered the right of the child and the obligation of the parent. Parents aren’t permitted to waive that right for their children.
Potentially, a spousal support waiver for support after a divorce. You can’t waive your duty to support your spouse during your marriage. A waiver of spousal support for after a divorce might be enforceable if each party had the advice of and independent counsel at the time the when the waiver was executed. However, even if the prenuptial agreement was validly executed, the court may find the agreement unenforceable at the time of execution if it is found to be “unconscionable.” This is an area that can be very tricky and I recommend that you talk to me or another attorney before trying to set up this type of clause.
Agreements that “promote a dissolution” are void. An agreement can be found unenforceable if it “promotes”, “encourages”, or “facilitates” divorce, such as when one spouse promises to give substantial value to another spouse only in the event of divorce.
Are couples with prenuptial agreement more likely to stay married than those without? Prenuptial agreements seem unromantic and like we’re talking about failure before we’re even married.
This is a very common question and feeling about prenuptial agreements. There are no official statistics about whether couples with prenuptial agreements are likely to get divorced or stay married. However, at Romanovska Law, we have found that when couples are able to discuss this delicate matter before their marriage, it shows that they are working to be compatible in financial issues, to care for each other’s well-being, and are practicing their communication skills. It’s not always an easy situation to get through, but it helps to gain clarity and stability for a Plan B should it ever be needed.
To find out more about prenuptial agreements, call Romanovska Law to set up a consultation.