How Do I Create a Prenuptial Contract?

Prenuptial contracts can provide marrying couples with substantial advantages and financial security. Unfortunately, these contracts have negative connotations for many people, most of whom believe that the suggestion of a prenuptial contract is an indication of a lack of faith in the success of the relationship. The reality is that prenuptial contracts can provide financial security to marrying spouses, especially those who have financial obligations to children from previous marriages, those who control substantial assets, and those who want to protect themselves from their spouse’s debts.

Creating a prenuptial contract is relatively simple; the difficulty lies in the scope of the contract and the complexity of the issues included in the contract. There are many tools and software applications available that can help you draft your own prenuptial contract, but ultimately it is always best to work with an experienced family law attorney to ensure your contract is fair and enforceable.

What Can a Prenuptial Contract Include?

It’s reasonable to think of a prenuptial contract as a contingency blueprint for a future divorce. Essentially, your prenuptial contract should clearly outline each spouse’s rights and responsibilities within the marriage and their financial rights and obligations should they decide to end their marriage in the future. Your prenuptial contract should be as comprehensive as possible if you want to be able to rely on it in the future, even if you are sure your marriage will withstand the test of time.

A prenuptial contract should be tailored to the needs of the marrying spouses, and it should include:

• Precise definitions of each spouse’s separate property. In California, divorcing couples must adhere to community property law, meaning they must divide all marital assets equally. However, they have the right to maintain ownership over their separate property. Therefore, your prenuptial contract should include a clearly defined list of all of your separate property and all of your spouse’s separate property. This can prevent any future disputes over separate property ownership rights.
• Clear definitions of each spouse’s debts. One of the most significant benefits of creating a prenuptial contract is ensuring your protection from your spouse’s debts. Your contract can clearly define each spouse’s debt responsibility, ensuring that you are not held responsible for debts your spouse brought into the marriage if you decide to divorce in the future.
• Terms for dividing marital property in a divorce. Community property statutes are often considered draconian or unfair, but ultimately there is no way around this statute in California. Your prenuptial contract can essentially provide a roadmap for dividing community property, including which assets are to be liquidated and the proceeds divided between the spouses, as well as determinations for different assets going to each spouse.
• Considerations for children from previous marriages. If you have financial obligations to your children from a previous marriage, your prenuptial contract can ensure that you can continue meeting these obligations in the future.
• Terms for spousal support following a future divorce. Many divorces involve alimony or spousal support. Your prenuptial contract can include clear terms for alimony, including the amounts paid, the frequency of payments, and the terminating actions that would bring alimony obligations to an end.
• Inheritance rights. It’s common for married people to want to ensure their family heirlooms remain in the family if they later decide to divorce. Your prenuptial contract can ensure family inheritance rights for specific assets or items.

It should be easy to see the many benefits of creating a prenuptial contract, especially if you are a high net worth individual or have financial obligations from previous marriages. However, while it’s vital to be as comprehensive as possible in creating your prenuptial contract, it is imperative that you know what you cannot include in your contract.

What Can’t I Include in My Prenuptial Contract?

Prenuptial contracts can provide clarity and security when it comes to assigning rights and responsibilities in a marriage. However, there are some things a prenuptial contract cannot dictate. First and foremost, you cannot include child custody or child support provisions in your prenuptial contract. If you and your spouse have children and later decide to divorce, your prenuptial contract will have no bearing on your respective custody rights and child support obligations. A family court judge must rule on child custody and child support to ensure the resolution suits their children’s best interests.

You cannot include personal terms in your prenuptial contract, meaning you cannot dictate day-to-day responsibilities in your contract. For example, you cannot make terms concerning who will take out the garbage, who will clean the house, or who gets to decide where you spend your vacations. In addition, while you can dictate financial responsibilities, such as paying bills and managing a household budget, you cannot set terms for mundane daily activities in your prenuptial contract.

What to Expect From a Family Law Attorney

If you want the greatest level of financial protection possible from your prenuptial contract, it’s vital to work with an experienced family law attorney in creating your contract. A good attorney will carefully review your needs and expectations to ensure your contract suits your requirements. They can also help you ensure your prenuptial agreement covers issues you may have overlooked without legal guidance on your side. Ultimately, legal counsel during the prenuptial contract drafting process is invaluable to both you and your spouse.

The attorneys at Bickford, Blado & Botros can provide the legal guidance you and your spouse-to-be need to have financial security and peace of mind as you begin your marriage. While it’s common for people to hold negative attitudes toward prenuptial contracts, our experience has shown that these contracts provide financial security and often help married couples have difficult but necessary conversations early in their relationships, bringing them closer together while reducing the chances of them experiencing many of the issues that are commonly cited as leading causes of divorce. If you are ready to develop a comprehensive and reliable prenuptial contract, we can help. Contact Bickford, Blado & Botros today to learn more about how our firm can help you.

 

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