Tips for Developing Your Prenuptial Agreement in California

Prenuptial contracts have something of a bad reputation, typically because most people view the suggestion of a prenuptial agreement as a sign of lack of faith that a marriage will last. While it’s true that a prenuptial contract can act as a blueprint for a future divorce, it can also provide substantial economic benefits to both spouses, effectively insulating them from one another’s debts and financial obligations. In addition, some people believe that prenuptial contracts are only necessary for very wealthy people; the reality is that this type of contract can offer significant legal protections to anyone.

If you have reservations about asking your spouse-to-be to consider a prenuptial agreement, it’s essential to understand what your agreement can include and the benefits of drafting one collaboratively with your partner. When done correctly, creating a prenuptial contract can yield strong financial protections for you and your spouse and help you have difficult conversations before marriage, potentially bringing you closer as a couple.

What Does a Prenuptial Contract Include?

Prenuptial contracts primarily serve to provide financial protection in a marriage. When spouses marry, their property, assets, and debts can intermingle in various ways, but a prenuptial contract can limit the intermingling of assets and offer financial security to both spouses. Essentially, prenuptial contracts can help avoid much of the stress of the property division process if the couple divorces in the future. These agreements also help establish financial rules for the duration of the marriage, outlining each spouse’s rights and responsibilities pertaining to spending and debts.

Many prenuptial agreements include postnuptial clauses. These sections typically dictate the rules of engagement for a later divorce, and some prenuptial agreements can include extensive postnuptial clauses that streamline a divorce significantly. An experienced attorney can help you determine your prenuptial contract’s components. Even if you have strong faith in your marriage, it is generally best to devise postnuptial terms that offer legal protection in the event of the unexpected.

However, it’s important to remember that there are specific limits about what can be legally enforced through a prenuptial contract. For example, the agreement cannot stipulate which spouse can choose where they will spend vacations, who will handle household chores and maintenance, or how parental responsibility is divided between co-parents. However, the contract can outline possession of separate property, responsibility for specific debts, and other terms pertaining to separate and community property in the marriage. A prenuptial contract solely applies to financial matters.

How Do I Create a Prenuptial Contract?

When creating your prenuptial contract, it is always best to work with an experienced attorney to draft your agreement in coordination with your spouse-to-be. A good lawyer will review your financial situation and that of your partner and help you determine the best ways to preserve your respective assets. For example, if one of you has a child support agreement from a previous relationship, your new prenuptial contract can include provisions that apply to your standing support order. This arrangement can prevent prior family court orders from conflicting with later disputes.

You can find many software programs and “free” tools that claim to allow you to create your own contracts, but it is best to consider these as nothing more than testing and rough draft creation tools. As you develop it, you and your spouse-to-be will need to have several important conversations about your prenuptial contract. Transforming these early conversations into an outline that you can present to an attorney can streamline drafting your prenuptial contract. In addition, your attorney will be able to quickly deduce your most significant areas of concern and help you and your partner understand your best options for addressing them.

For a prenuptial contract to be enforceable in California, it must meet a few legal requirements. First, it cannot contain any illegal or unconscionable terms. Second, it must be signed willingly by both parties. The contract is not legally enforceable if either spouse signs the agreement under duress or coercion. Similarly, the contract is not enforceable if it is outdated. Once you and your partner draft your prenuptial contract, it will be essential to review it every few years to ensure it still aligns with your evolving circumstances. An attorney can assist you in implementing any necessary amendments or modifications your contract may require.

Prenuptial Contracts in Divorce

When a couple divorces in California, they must resolve property division under its community property law. This law upholds that all income and assets gained during a marriage are the shared community property of both spouses and subject to 50/50 division in divorce. However, a prenuptial contract can provide a legal distinction between community property and each spouse’s separate property. Their contract could significantly streamline the process of dividing marital property under the community property statute, streamlining the entire divorce case.

Prenuptial contracts can also guide determinations regarding spousal support, also known as alimony. Some couples develop their prenuptial agreements to ensure fair and reasonable spousal support terms if they decide to divorce. Ultimately, there are many ways to customize a prenuptial contract, but it is crucial for spouses with these agreements to remember that they must update them after significant life events, such as the birth of a child, the appearance of a medical complication, or inheritance of substantial assets.

If you are unsure whether your current premarital agreement is still legally enforceable, it’s good to have an experienced divorce attorney review it. If you plan to end your marriage and need to ensure your prenuptial agreement is still enforceable, an attorney can help you determine whether you can rely on the contract to guide your divorce.

Contact Bickford Blado & Botros Today

The attorneys at Bickford Blado & Botros have years of experience helping clients with difficult divorce cases. We have also assisted many clients in developing their prenuptial agreements. Our team can help you draft a new contract, revise an existing one, or ensure a contract is faithfully upheld through divorce proceedings. Contact us today to learn more about our services concerning prenuptial agreements in California.

 

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