What’s a prenup agreement?

Posted By Aaron Denton, On August 26, 2020

2020 Prenup FAQs: Important Questions About Prenuptial Agreements

Marriage is a partnership between two people where collaboration is an essential part of their success in the relationship. Part of the challenges of marriage is knowing how to manage finances. A prenuptial agreement helps couples navigate the legal implications of their marriage. It allows them to predetermine the future of their assets in the event a divorce was to take place.

Let’s review important questions people have about prenuptial agreements:

#1 What is a Prenuptial Agreement and When Should it be Done?

Also known as a premarital agreement, this type of legally binding contract is used by couples who plan to get married. It is also referred to as antenuptial agreements or just prenups. All terms are appropriate and widely used.

Marriage is a partnership under the eyes of the law. Each state has its own statutes that govern marriage and divorce. Family law attorneys help clients draft and validate a prenuptial agreement. They also offer legal counsel in matters of assets and liabilities. The contract deals with protocols that the couple design to implement in the event the marriage dissolves.

It is sometimes regarded as an uncomfortable topic to talk about and is filled with negative connotations. The fact is that couples who come together to draft such agreements often feel closer to each other because they are transparent with their intentions and are willing to put it in writing.

Although it can be a bit uncomfortable to speak about, prenuptial agreements lay everything out so that the couple knows exactly how certain matters may be handled in the future. It defines the terms of how assets and debts will be distributed, and how alimony would be handled. The agreement helps people avoid lengthy and stressful legal battles in divorce court. People who are concerned with alimony are able to negotiate it ahead of time and include it in the contract.

Overall it is a great tool for couples who want to be proactive with their legal affairs.

#2 What Requirement Are There to Make a Prenup Enforceable?

For a prenuptial agreement to be valid and enforceable, it has to meet the following criteria:

  • The document must be well-drafted in writing, signed by both parties, and witnessed by a third party.
  • Each individual must list all current assets and liabilities. There can be no hidden assets, everything must be disclosed.
  • Each person has to have their own attorney. One attorney cannot handle the case for the couple.
  • There must be no evidence of coercion, undue influence, or duress.
  • Provisions on the contract must be permitted by law.
  • The agreement must be signed and made valid 1-3 months prior to the wedding.

What Cannot be Included in the Prenuptial Agreement?

The agreement cannot be used to determine factors concerning the children of the marriage. It cannot mention anything about child custody, child support, or visitation rights. The courts will follow state statutes to make the best decision for the sake of the child.

Other non-financial topics such as domestic responsibilities cannot be part of a prenuptial agreement. These matters are not recognized by law. The couple may draft a separate agreement, but it will not be a legally binding contract like it is for a prenup.

Can the Prenuptial Agreement Help Avoid Litigation In Case of a Divorce?

Not necessarily. The agreement cannot guarantee that the divorce is free from litigation. However, a well constructed prenuptial agreement will help make litigation faster or even help avoid it entirely.

What Cannot be Included in a prenuptial agreement

Issues related to children such as custody, visitation rights, or child support payments cannot be included in the contract. The state of California will apply related laws in the best interest of the child(ren). Also, domestic duties or other matters that do not pertain to financial matters should not be included in the agreement. For example, a spouse cannot include things like chores or other obligations a couple may have in their domestic life.

No personal matter shall be included that deals with the way the children are raised or anything of personal nature. Prenuptial agreements are created mainly for financial distribution.

Where Can I Sign a Prenuptial Agreement?

The prenuptial agreement is a legally binding contract that should be filed at the state of residence or the state where the couple will reside most of the time. It does not have to be filed where you wed, such as in the case of destination weddings. California is a community property state, which means the state will divide assets equally in the event of a divorce. Having a prenup in California prevents the state from enforcing the California Family Code.