- #1 Plan ahead. Try to plan ahead at least two or three months or more. A lot of clients who have come to my office and want to get married in couple of days, unfortunately, aren’t able to get a prenuptial agreement. Even if I prepared the agreement in an hour, it would not be possible to do so. According to family law, California, section 1615, a prenuptial agreement needs to have seven days at least to for the other party, to look over the agreement and to find a lawyer. However, if you and your spouse do lack the time to do the prenuptial process, there is always a postnuptial agreement that you can look into.
- #2 Plan the terms of your agreement. Some people come to me and they're like, "What do people typically do in prenuptial agreements?" It's hard to say, because I can tell you what the classical prenuptial agreement would be, but it's also up to you, what would you like to have in this agreement? This agreement is not truly a living instrument, it's more something that is enforceable upon divorce. Therefore, it can be difficult to think about doing a prenup when you're in the romantic phase. It’s hard to think about what parties want upon divorce, especially to think about if divorce happens in 20 years. What I also remind my clients is not to worry, you can always change this agreement and have a post-nuptial agreement if you don't like what you had originally signed 20 years ago. In this moment, however, if you're thinking about getting married, and you would like to think about terms, think about the following: Would you live right? Would you like to receive spousal support and alimony? Would you like to not pay spousal support? Would you like to pay more than the statutory obligation under California Law or less than? Or would you like to say, if we're married for five years and get a divorce, not pay spousal support? Would you like to determine that if you’re married more than five years then designating spousal support is appropriate? Considering the above is very important to think about ahead of time.
- #3 Gather all your information, gather all of your assets and debts. Some people have couple bank accounts, they don't have much, but some people have hundreds of pages and hundreds of bank accounts and investment accounts. And they're changing every day. So, create a spreadsheet or have your accountant create a spreadsheet of all the checking savings, investment accounts, houses, everything ideally on and on the spreadsheet where you can see some people say, "Well, I have checking card at Chase." Well, in 20 years, maybe you have 15 accounts at Chase Bank. So, we need to know which account was supposed to be a separate property account. So, therefore include four last digits of that account.
- #4 Don't wait for your spouse to read the agreement. According to California Law section 1615, family court, the other spouse must have at least seven days to read, to review the agreement, and to find a lawyer. There was also a recent case of appeal that says, no significant changes are allowed to be made to the drafted prenup for seven days before signing it in order to have a valid prenuptial agreement. Assuming the document is going to be signed before the marriage, it's called prenup. So, if you have a prenuptial agreement and you're getting married in a month, present the document for review to your spouse as soon as possible.
- #5 Have your spouse hire a lawyer as well. One thing is clear, if there is a waival of spousal support in the agreement the prenup is only enforceable if the other party was represented by an attorney. If the other party wasn't represented by a family law attorney during the drafting of the prenuptial agreement, then the prenuptial agreement is not valid. How do you know 20 years later whether or not a spouse was represented by a family law attorney? Well, you look to see if lawyers signed the agreement on its face. If so, there will be a presumption that, that spouse was represented. Ideally, I always suggest that both parties are represented by two separate attorneys. Some people come to my office, and ask, "Why don't you do a prenuptial agreement for both of us? We're in agreement with everything. It makes sense." My answer is, yes, but here's the thing, that is a conflict of interest. The prenuptial agreement in itself could be potentially conflicting. In every potential marriage, some spouse has more, and some spouse has less. Eventually, there will be a conflict. I always suggest that the other spouse hire another lawyer who is independent, didn’t draft the agreement, who can review it, negotiations some points, or if there are no negotiations then at least explain what the other spouse is signing.
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