Diamond Bar prenuptial agreement lawyers

Posted By Aaron Denton, Uncategorized On August 25, 2020

Getting married is a huge step. When people marry, they are agreeing to spend the rest of their lives together. On the surface, often looks like a good idea. Many couples spend decades enjoying incredible wedded bliss. At the same time, statistics show at least one in three marriages will lead to divorce. That’s a significant percentage. Getting married means not only the decision to live together and, for many people, have children. It also means entering into a legally enforcing contract. In many states, including California, marriage has legal consequences that can be enforced. If the marriage ends in divorce the other party may find they are facing all sorts of issues that may affect their lives long after the divorce. Under these circumstances, it is best to consider all possible legal ramifications of getting married. Careful preparation can ensure the interest of both parties are protected if the marriage does not work out.

The Prenuptial Agreement

Over time, a system has developed that allows both parties to have legal protection should the marriage not stick. This is known as a prenuptial agreement. A prenuptial agreement is an agreement how assets will be divided if the parties wish to dissolve the marriage. The prenup is an agreement that the bride and groom agree to before they get formally married. This is a legally binding contract. The contract lays out what is going to happen the assets the couple has if they wind up divorced. It also spells out what is going to happen to any accumulated debts such as student loans and mortgages if the marriage ends in divorce court.

Under California law, each party to the marriage must agree to the terms of the prenuptial agreement. The laws governing the workings of the prenup in California fall under the Uniform Premarital Agreement Act or UPAA. Under this law, the prenup is in enforce once the parties get formally married. This contract can cover many assets such as present income, future potential income, personally owned securities and home equity. The prenup must meet certain criteria in order to be enforceable.

These requirements are:

  • formal, written contract,
  • legally enforceable terms,
  • voluntary signature by both parties,
  • a notarized authorization,
  • and at least a week to get help before signing the agreement.

If these requirements are met, the document is considered binding. The agreement cannot include things in order to be legally enforceable. This includes matters relating to child support, the agreement to commit illegal acts together, terms that are obviously unfair to one party or language not pertaining to financial matters such as the agreement that a future spouse will go on a diet or wear makeup. A prenup that isn’t a formal, legal, notarized document cannot be enforced.

The Benefits of a Prenup

Making use of a prenup offers a great many benefits for California residents. This kind of agreement, above all, begins any marriage on an equal foot. Both parties know all about the other’s finances. That encourages free and easy communication even before they get married. Financial matters are one of the single most important issues all couples face. When each party to the marriage knows each person brings to the marriage financially, they can be assured of having insights into how that person manages money. This allows each party to see what savings the other party has as well as any prior debts. People can be assured the person they are marrying shares their financial goals in life. That means they agree about issues such as savings, budgeting and making future financial plans together.

For people who already have a financial nest egg, the prenuptial agreements provides them with the kind of protection they need in the event of divorce. A prenup can specify the other spouse is not entitled to a share of an established business should the marriage not work. That means the spouse won’t be required to sell or rejigger their existing business mode.

The prenup also makes a divorce easier. That means there are fewer disagreements over the division of assets. Both parties need not spend a lot of time arguing about assets they owned before they married. The prenuptial agreement offers a road map. It allows each party to determine what is fair before they get married. One party can agree to provide certain financial benefits if the marriage doesn’t go as planned. The other party can breath easier before they get married. They don’t have to worry that the spouse will leave them without assets if they get divorced. From the very start of the marriage, trust is vital. A prenup, in short is one of the best ways to build a sound financial future together.

Intro to Prenups

Prenuptial agreements, also called antenuptial or premarital agreements, were only popularized in the US as recently as the 1980s, but they are said to date as far back as ancient Rome. 

Essentially, a prenup is a contract signed by two people who intend to get married.

The relevant laws in the Golden State dictate the rights and obligations of spouses (and domestic partners). Some can be renegotiated and modified in an agreement. Terms can also be put in place for the possibility of the death of one or both spouses. 

Most certainly, the terms in a prenup can diverge from the default terms under the current state legislation. 

Do You Need a Lawyer for a Prenup?

The short answer is that you don’t need a lawyer for a prenup. You can write a prenuptial agreement without legal counsel, just as you can write any other contract.  Nevertheless, you could make an error or omission in the absence of a well-informed attorney that may make it impossible to later enforce. 

Prenups in California: Signing, Validating and Enforcing with Legal Counsel

As stated earlier, you can create a prenup by yourself (at your own peril).  That said, getting your prenup in California signed, and later enforced, may require legal counsel.  Mostly, courts view premarital agreements in a favorable light. That fact notwithstanding, there are several scenarios in which your prenup cannot and will not be enforced.  

For example, if any suspected coercion at signing can be proven to the court, then the agreement is invalid.

For the court to determine whether a signature is authentically voluntary, the judge would want to know if the person who was asked to sign the prenup either consulted with a lawyer of their choosing, or waived their right to have a lawyer in writing.

By law, that person must have been allowed at least seven days to obtain their own legal representation before signing. If, for example, a husband doesn’t have a lawyer at signing, he has to be able to give a full explanation of the contents of the contract to show that he knew what he was signing.

The Authority of Your Prenup in California

A prenup can deal with such issues as the interests of the future spouses in their separate and community real estate holdings. These interests can include the right to sell, lease, buy, or mortgage property. 

Some important limitations to the authority of prenups in California:

  • Lifestlyle Clauses in Prenups Life-style clauses, such as clauses dictating how often you have sex or limiting visits by in-laws normally cannot be enforced in a court of law.
  • Alimony/Spousal Support If a judge perceives that a waiver of spousal support is unconscionable, they can choose not to uphold it and award support. 
  • Additionally,  judges will not enforce clauses that limit spousal support if the spouse whose rights have been minimized didn’t have a chance to get their own attorney at the time they signed.
  • Child Support The Family Code states that “[t]he right of a child to support may not be adversely affected by a premarital agreement.” 
  • Requirement to Commit a Crime Any contract that requires someone to commit a criminal offense or otherwise violate laws or policies cannot be valid. 

How Can I Be Sure That My Prenup is not Invalid?

For a prenup to be valid, it needs to be in writing and signed by both the husband and the wife. The contact can be modified or revoked after the couple has already married. These kinds of changes also necessitate a written agreement signed by both spouses. 

Undue Influence in Prenups

Notably, because of the special, intimate nature of the connection between husbands and wives, the very suggestion of a prenup can bring about suspicions of undue influence.

The law stipulates that the intimate, fiduciary connection between spouses “imposes a duty of the highest good faith and fair dealing on each spouse.” The family court has the authority to penalize any violation of the marital fiduciary obligation. 

There is no fiduciary relationship between people engaged to be married. Therefore, the presumption of undue influence would not apply.