How to Do a Prenup Without a Lawyer

Posted By admin, Uncategorized On September 1, 2020

About  Prenups

A prenup (aka prenuptial, antenuptial, or premarital agreement) is a written agreement between two parties.  

Why Should I Do a Prenup?

In an article on Rocketlawyer.com, it was reported that a prenup can, for example, shield you from responsibility for your spouse’s debts and stop arguments if you decide to  divorce

With a prenup, you can: 

  • Lay out how your assets are passed on 
  • Document the ownership of property 
  • Outline the separate property that each person brought to the marriage 
  • Decide the legal ownership of the property, assets and income that are gained in marriage . 
  • Decide how you and your spouse’s finances should be handled. 

In the absence of a Prenup, if you divorce or one of you passes away, the distribution of your assets will be subject to the divorce and probate statutes where you live or where you were married.

prenups in California are sometimes different from marriage and divorce laws

The laws in the Golden State oversee the respective rights and obligations of spouses. Nevertheless, some marital rights can be renegotiated and modified by an agreement. Spouses can decide in advance the terms of their property shares during marriage or, if it should come to it, divorce.  

Terms can for the eventuality of the unfortunate death of a spouse can also be delineated in the contract. 

Indeed, prenups in California are sometimes different from marriage and divorce laws. Agreed upon terms can differ from the default procedure under the state legislation.  

 

The Limits of Prenups

There are several important limitations to the authority of prenups:

  • The California Family Code provides that “[t]he right of a child to support may not be adversely affected by a premarital agreement.” 
  • A judge will only enforce clauses in the agreement that limit spousal support if the spouse whose rights have been diminished had the chance to retain their own legal representation at the time they signed.
  • If the courts deem the waiver of spousal support unconscionable, they can decide not to uphold it and award support. 
  • Any agreement that obligates the future spouses to commit crimes or otherwise violate laws or public policy cannot be valid. 
  • Some life-style clauses, such as those curtailing visits from in-laws or dictating how often you have sex usually cannot be enforced by courts.

How to Do a Prenup Without a Lawyer

As with any contract, you can create a prenuptial agreement without legal counsel.  There are templates around that you can use to draft one up.  What becomes questionable is whether or not your prenup can be later enforced under the laws of the jurisdiction you’re in. 

The requirements of a contract are: 

  1. promises, 
  2. consideration, 
  3. and signature
  4. The stamp of a witness or notary in some states. 

Nonetheless, understand that different jurisdictions has different statutory and case law related to what is and is not allowed in a prenup, and only an experienced attorney would be aware of and have an understanding of what these are for your unique needs.

How Can I Know if My Prenup is Valid?

To be a valid agreement: 

  1. The prenup must be in writing, 
  2. It should be signed by both parties
  3.  The prenup is only valid after the marriage date .

(Domestic partners: your date of registration is akin to the date of marriage, so a prenup would become valid on the registration date.)

If the marriage is annulled at some point, your prenup might not be enforceable, or enforcement may only be possible to a minimal degree.
Of note is the fact that due to the special, intimate kinship between husbands and wives, rumors of a prenup have the potential to bring the suspicion of undue influence. This presumption might be advantageous to either party who could later challenge the validity of the prenup.

The California Family Code outlines that the intimate, fiduciary liaison between spouses “imposes a duty of the highest good faith and fair dealing on each spouse.” 

Judges have the legal authority to sanction any violation of fiduciary obligation by awarding the entire value of an undisclosed asset in a divorce to the spouse that was deceived about it.