Nuptial - Prenuptial and Postnuptial Agreements
Since California is a community property state, anything done after those words of "I do" are said and marriage occurs, you are a union and everything is 50/50. A marriage, while a happy union of love in the eyes of the state, insurance companies and social media, is instead a financial partnership. Why would you start a business without a written agreement about who gets what in the business? The same goes for a marriage. It is best to have an agreement for the allocation and division of assets. This goes for before and after marriage. Many people believe that the willingness to sign a prenuptial agreement is a good foundation for marriage. You will really know if the other partner is interested in money or "true love."
Prenuptial agreements – what is it?
A prenuptial agreement is a contract before marriage that describes the division of property, in the event of sudden divorce, death or separation.
So, is a prenuptial agreement a contract?
Although it is a contract, a prenuptial agreement has rules that govern its drafting and execution. § 1610-1617 is the Family Code article relating to Prenuptial Agreements.
There are simple rules such as each party must have their lawyer, and complicated technicalities that involve dates and deadlines when signing the document. It may be crucial that you have your knowledgeable Orange County attorney assist you with your prenuptial agreement to protect your assets and maintain the integrity of the contract.
Prenuptial agreements can be an awkward conversation before marriage, but they can save your stress in the event of an unforeseen divorce.
Cans, and cannot of a prenuptial agreement.
Prenuptial agreements can be helpful by allowing the parties to:
- List separate personal property and community marital property
- Protect family property by having family heirlooms, wallets, and real estate pass to the biological family and not to the divorced spouse’s family.
- List liability for debt and protect the debt-free spouse from assuming responsibility to creditors. This is helpful since creditors love to go after marital property.
- List a legally reasonable spousal support agreement in case of divorce
- Name your children out of wedlock and protect their rights and ensure they are enforced.
By contrast, prenuptial agreements cannot include:
- Address child custody and visitation, religious choices, and school preference. This is left for the court to decide in the ‘best interest of the child’ (link to best interest custody area page).
- Child support provisions. The court has the sole discretion to determine the best interests of the child.
- Personal preferences and rules. A prenuptial agreement is an agreement to divide assets, not rules about your personal life in the marriage. Sometimes this includes lifestyle clauses, and some states allow for some specified ones. The clause you are probably familiar with, the infidelity clause, is one that California does not support. This is due to California’s no-fault divorce policy.
- Everything that is considered illegal. The law that says that a contract cannot enforce the rules of illegal acts on this contract.
What is a postnuptial agreement?
In the same context as a prenuptial contract, the postnuptial agreement is a contract about assets, but signed after the marriage has occurred, not before?
Aren’t they the same, but signed at different times?
This is a yes and no answer. A postnuptial agreement is subject to the same legal standards as a prenuptial agreement, as long as it meets the legal requirements outlined in the code.
The postnuptial agreement is signed while married. This means you are establishing ownership of the things you brought into the marriage and the assets you have acquired together.
Are prenuptial agreements better than postnuptial agreements?
A postnuptial agreement is good for establishing a name for newly acquired assets after marriage. For example, this can protect an investment return of, say, $100,000 obtained from a separate gift of money from a spouse’s father. A postnuptial agreement is good for easing tensions in an impending divorce to save hours of anguish over the division of property. It may be cheaper in attorney fees to agree to divide assets using a postnuptial agreement than to divide assets and proceed with the divorce at the same time. In a great scenario, the assets are listed on paper, legally secured, and the couple attends counseling. In the worst case scenario, the couple proceeds to divorce and already has a property division contract.
Prenuptial agreements are excellent for protecting assets that were already owned before the marriage. But, simply put, if assets are acquired after marriage, each party will be entitled to them unless otherwise agreed.
It is not easy to develop all possible scenarios. It is also not easy to use a word like prenuptial or postnuptial agreement between couples because of its purpose. At the end of the day, it’s better to be prepared, not scared. It doesn’t hurt to call your local Orange County family law attorney to discuss whether a prenuptial agreement is right for you. It doesn’t hurt to discuss whether a postnup is right for you.
They are a protection of both parties’ assets, time, and possible future separation legal fees. Thedivorcerate is over 30 percent in right now and close to 50% in Orange County. It doesn’t hurt to worry about whether you’ll need a prenup or postnup to save you and your partner fees and heartache down the road. The best case scenario is that you both never have to use the document, but the worst case scenario is that you do and a simple consultation and drafting of a document could have cut your stress, time and costs in half.
Contactyour local county prenuptial attorney from Orange today to discuss the available options.