PRENUPTIAL AND POSTNUPTIAL AGREEMENTS
PRESERVE ASSETS YOU BRING TO MARRIAGE
Prenuptial and postnuptial agreements are beneficial for people with a high net-worth as well as people with more modest assets. Both agreements are useful tools for anyone who wants to set aside assets for children, protect assets in the event of divorce, or the death of a spouse. These agreements can also provide protection for children of prior relationships.
At E&L, LLP, we can assist in drafting pre or postnuptial agreements to address asset protection and related issues. With our family law and divorce experience, we understand the importance of specifying each party’s rights when a marriage terminates. At the juncture of marriage and divorce, contact E&L, LLP to discuss your legal needs.
PRENUPTIAL AGREEMENTS IN CALIFORNIA
Many feel there is a stigma associated with signing a prenuptial agreement and that it indicates some measure of distrust in your potential spouse or that you are anticipating that your marriage will end in divorce. This is the farthest thing from the truth. Besides being incredibly smart and necessary (especially for those with substantial assets) a prenuptial agreement can also be a tool that can help young couples define the constructs of their relationship and have an open and honest conversation about what they feel is important and expected in their coming marriage.
Premarital agreements in California do have limitations. You cannot make agreements regarding child custody or child support, for instance. Although you are allowed to include language that limits or more completely defines spousal support arrangements, the tenants of those agreements must not be deemed “unconscionable” or “unreasonably unfair”. Defining exactly what the courts will consider to be unfair is difficult, but an experienced premarital agreement lawyer will rely on placing limits on the amount and length of a spousal support award as opposed to eliminating the support totally.
Prenuptial agreements are also vital to protecting property that a spouse may have acquired prior to marriage; this is called “separate property”. A prenup can provide that your spouse never acquires a community interest in your separate property. In the absence of a prenup, what is defined as community and separate property can come into question. In order to resolve this, substantial cost and effort must be placed into auditing a couple’s financial history. Things like dates of purchase, purchase prices, contributions, and increases or decreases in value over time must be established. This process can be exceedingly costly often running into hundreds of thousands, or even millions, of dollars.
HOW PRE AND POSTNUPTIAL AGREEMENTS OPERATE
A prenuptial agreement is a legal contract detailing the assets and debts each party has before entering the marriage. It establishes the property rights of each party should the marriage terminate in divorce or if one spouse dies before the other.
In California, prenuptial agreements are not legally binding unless they contain a full and fair disclosure of assets. If an agreement is not prepared correctly, it will not hold up in court. When necessary, our firm will consult with financial experts to discover hidden assets of the other spouse to protect the interests of a client before execution of the prenuptial agreement.
A prenuptial agreement can address issues such as property division and alimony. Spousal support and alimony provisions in pre or postnuptial agreements can provide for non-modifiability in the event of divorce; provisions that a court may not require, and in many instances do not place, in orders concerning alimony and spousal support. However, an agreement fixing or waiving child support is invalid to the extent they derogate from the parents’ statutory child support obligation. Child custody issues in pre and postnuptial agreements are not binding.
A postnuptial agreement is a legal contract created after the marriage has been entered into but before a couple wishes to terminate their marriage. Many couples and families use postnuptial agreements for estate planning purposes. For a person entering a second or third marriage, a postnuptial agreement can be used to preserve assets for their children. Intact families often use postnuptial agreements to protect assets such as a family business. When properly prepared, such agreements can avoid the family business being adversely affected by an owner’s or shareholder’s divorce or death.
Contact us to schedule an appointment for your free consultation, or contact us online, regarding your family law matter, and determine how we may be able to assist you.