What You Need to Know About Prenups
There’s no doubt about it: divorce is expensive. This process is one that can easily leave you financially strapped for a long time, and deal a significant blow to an entire life’s worth of work.
Luckily, there’s a really good way to insure yourself against that worst-case scenario. Enter: the prenuptial agreement.
A prenuptial agreement is a contract that couples can draft, prior to marriage, which allows them to subvert the normal laws of marriage and divorce, and gives them the power to dictate their own terms. This document can be an invaluable tool for those looking to protect hard-earned finances against the possibility of divorce.
Here’s what you need to know about prenups in California, and what the Provinziano team can do to help you with these matters.
Prenuptial Agreements 101: Your Divorce Insurance Policy
If you’re keyed into pop culture at all, then we’re guessing you’ve heard the term “prenup” at least once or twice, along the way. But what does this oft’ used term actually mean?
A prenup, or “prenuptial agreement,” is a special contract that couples can make, prior to getting married. This document can be used to do a lot of things (like, say, keep property separate while you’re married, or even, dictate chores); however, its primary purpose is to protect your finances against the possibility of a future divorce.
If we had to guess, we’d say that that last point is where prenuptial agreements started to get a bad rap. Because if you signed one, then you must be thinking about divorce, and if you’re thinking about divorce, then you must already believe that your marriage is going to fail, right?
Fortunately, those archaic notions are being put to rest. These days, instead of viewing prenups as a sign of certain marital doom, modern couples are seeing prenuptial agreements for what they always were: a savvy insurance policy.
What Can a Prenup Include?
Prenuptial agreements were primarily designed to protect a couple, financially, in the event of an actual divorce. This means that most prenup clauses revolve around finances, and are used to:
- Distinguish between community and separate property;
- Keep assets separate;
- Assign debt obligations;
- Separate business interests from community property;
- Protect the interests of children from previous relationships;
- Outline basic estate interests;
- Manage household bills and expenses, and in some cases,
- Outline future alimony (subject to judicial scrutiny).
In addition to financial clauses like these, recent prenuptial agreements have seen a marked uptick in what’s known as “lifestyle clauses.” These clauses are less financially motivated and centered more on dictating a couple’s personal, everyday life (such as chore charts, in-law law visits, and weight requirements).
While technically legal, judges are usually hesitant to get involved with a couple’s personal life. Hence, how enforceable these clauses are will ultimately depend both on how clearly they’re stated in your contract, and how willing your judge is to get involved with things like this.
What Can’t a Prenup Include?
While the introduction of lifestyle clauses has opened the door to all sorts of interesting obligations, there are a few things prenuptial agreements absolutely can’t do.
For example, California courts will not enforce clauses that:
- Waive the right to employee benefits;
- Require something illegal;
- Require something that’s against public policy;
- Reward a spouse for getting divorced;
- Attempt to dictate child custody and visitation; or,
- Limit child support obligations.
Even if you and your partner agree, California courts are never obligated to uphold a clause that attempts to control decisions about a child. These decisions are made according to the child’s best interest, at the time of divorce, and trying to sneak them into a prenuptial agreement puts your contract in danger of getting voided by a future judge.
Who Should Get a Prenup?
Historically, the stigma has been that prenuptial agreements are only useful for couples with a significant wealth difference between them. While this is definitely a good reason to get a prenup, it’s certainly not the only one.
Regular couples with regular finances can still benefit from having a prenup, particularly in situations where one or both partners:
- Have already been married;
- Have children from a previous relationship;
- Have a significant wealth gap;
- Have an inheritance they’re concerned about;
- Want to keep their personal life off the internet;
- If one has significantly more debt than the other;
- If one owns a business; or,
- If one plans on being a stay at home parent.
This list is not exhaustive, and the truth is, almost every couple would be better off entering a marriage with a prenup, rather than without one.
Legal Requirements for a Valid Prenuptial Agreement
You and your partner make a lot of plans… on the phone… via text… written in marker on the bathroom mirror… There are lots of ways to make a commitment when you’re in a relationship. When it comes to drafting a valid prenup, however, the requirements are a bit more stringent.
According to California law, in order to be valid, a prenuptial agreement must meet the following requirements:
- The contract must be in writing.
- The contract cannot require anything illegal.
- Both parties must enter into the agreement voluntarily.
- Both parties must voluntarily sign the agreement.
- The contract must be notarized.
- The contract must be executed prior to marriage.
California law is fairly strict about that last point. In order to be valid, everything must be done prior to saying, “I do.” Anything after that point—even if on the same day as your wedding—won’t count.
In addition to these requirements, the contract must also be fair to both sides.
Keeping Things Fair
Unfortunately, there are some people who try to use a prenuptial agreement as a way to defraud a partner, or to set themselves up for a better arrangement, post-divorce.
Obviously, that’s not what marriage is about, and so in order to safeguard against this type of behavior, California legislatures have adopted additional prenup requirements, which they’ve laid out in the Uniform Premarital Agreement Act.
This law basically states that if your prenup was drafted after 2002, it will not be enforceable, unless:
- Both spouses were fully appraised of all property, assets, finances and debts, prior to signing the agreement.
- Both spouses had at least seven days to review the agreement, before signing.
- Both spouses were represented by a separate attorney, unless:
- One spouse received full, written information about all terms, effects, rights, and obligations, and,
- That same spouse signed an acknowledgment of receipt, and expressly waived their right to an attorney.
However, even if all the elements on point three are met, without independent representation, the court will not be obligated to enforce any clauses that address alimony.
What Happens if We Don’t Get Married?
Sometimes couples are worried about drafting a prenup, because they’re afraid they’ll be obligated to uphold a contract with someone they’re no longer committed to, if the marriage falls through.
Luckily, this is an unnecessary concern.
In California, the terms of a prenuptial agreement are contingent upon you actually getting married. Indeed, the entire enforceability of this contract is triggered by that commitment, and hence, if you never tie the knot, then your prenup is essentially just a waste of really expensive legal paper.
What if We Never Get Divorced?
The answer to this question is a bit split. On the one hand, you got married, so—assuming you met all the rules we mentioned earlier—that means you have yourself a valid prenuptial agreement. However, since prenups deal primarily with divorce-related issues, where does that leave us?
In this situation, terms that are triggered by marriage (such as lifestyle clauses, debt obligations, and property ownership) are enforceable, as soon as you get married. Terms that specifically address divorce—while still valid—would not go into effect, until you got divorced.
Keep in mind that while you and your spouse are free to modify your prenup anytime during your marriage, if you’re ever legally separated, the terms will lock into place. At that point, your prenup cannot be modified until your separation is legally revoked.
What if I’m Already Married?
If you’re already married then, unfortunately, you’re out of luck in the prenup department. Because remember, a critical part of creating a valid prenuptial agreement is making sure it’s signed, sealed, and complete before saying, “I do.”
That being said, if you’re already married—and are still interested in drafting a contract—all is not lost.
Already married couples can achieve similar results by drafting what’s known as a marital as a “marital agreement.” Marital agreements (also known as “post nuptial agreements”) act a lot like prenups, covering many of the same issues and protections as their pre-marriage counterparts. The main difference is that they’re drafted after marriage, rather than before.
If a postnuptial agreement sounds intriguing to you, talk to an experienced family law attorney about how to get started.
Are You Thinking About a Prenup in California?
Historically, prenuptial agreements were seen as a harbinger of doom—a sure sign that marriage was destined for ruin. Today, however, that’s no longer the case, and many couples are viewing this agreement for what it really is: a legitimate way to protect your interests against an eventuality that may never happen.
If you have more questions about prenuptial agreements in California, and whether one is right for your relationship, we want to hear from you. Call Provinziano & Associates at (310) 820-3500, or get in touch online, and let us help you start your marriage with the right foot forward.