La Mirada prenuptial agreement lawyers

Posted By Aaron Denton, Uncategorized On August 25, 2020

What’s a Prenup?

A prenuptial agreement (aka premarital agreement, antenuptial agreement or prenup, for short) is a contract between two individuals who are planning to wed.  

Why Should I Get a Prenuptial Agreement?

The fact is that prenups are not only for wealthy people. A prenup would, for example, protect you from later having to take responsibility for the debts of your spouse.  It can also help prevent arguments in the event of a divorce, according to Rocketlawyer.com. 

With a prenup in force, you will: 

  • Have the security of known that your assets will be passed on how you would like them to be
  • Possess documentation in writing verifying the ownership of your property, that of your spouse and all property that is jointly owned
  • Have a thorough  inventory of each spouse’s separate property
  • Be informed about the legal ownership of any property, assets and income gained during the marriage . 
  • Take the guesswork out of how you and your spouse’s finances should be dealt with under a variety of circumstances. 

Without a prenup in place, if you should divorce or when one of you passes away, the handling of is subject to the present divorce and probate legislation.

Can You Do a Prenup Without a Lawyer?

As with any type of contract, you certainly can do up a prenuptial agreement without a lawyer.  There are templates to help you do your own prenup, some of which were supposedly reviewed by reputable lawyers.  Nevertheless, can you do a prenup that will be enforceable in court?

Every jurisdiction has separate statutory and case law regarding what is and is not permitted in a premarital agreement.  Only an attorney with experience in these matters would know and understand what these are to incorporate in your agreement.

Is It Possible for Prenups in California to Diverge from Marriage and Divorce Legislation?

The Family Code in the Golden State delineate the respective rights and obligations of the spouses. Some of these marital rights are negotiable and can be overridden by an agreement. 

There can also be terms in the contract for making decisions in the event of the unfortunate death of a spouse.

It is very possible for prenups in California to diverge from marriage and divorce legislation.

How Can I Determine Whether or Not My Prenup is Valid?

To have a valid prenup: 

  1. It must be a written agreement, 
  2. It must have been signed voluntarily by both parties planning to marry
  3. There must have been a legal marriage between the parties who signed.

In cases where the marriage is annulled, whatever prenuptial agreement is in place may end up being impossible to enforce, or enforcement of it may only be minimal.

Limitations of the Power of the Prenup

Here are several important limitations to the power of a prenup in California:

  • Clauses Necessitating the Commission of a Crime A contract that necessitates that one or both of future spouses to commit crimes or otherwise violate laws or public policy would never be deemed valid.
  • Alimony/Spousal Support – Unfairly Waived The court will not enforce any clauses in your prenup that limits spousal support if the spouse whose rights have been adversely affected had no opportunity to retain their own lawyer at the time they signed.
  • Alimony/Spousal Support – Unconscionable Waiver If a court finds that a waiver of spousal support in a prenup is unconscionable, they can decide against upholding it and award some amount of support. 
  • Child Support According to the California Family Code: “[t]he right of a child to [receive] support may not be adversely affected by a premarital agreement.” 
  • Lifestyle Clauses in Prenups Although they can be fodder for great conversation, lifestyle clauses which, for example, dictate terms related to sex between the spouses or those outlining visits from in-laws normally are not enforceable by in a court of law.

The Uniform Premarital Agreement Act

For a list of all of the relevant statutes relating to prenups in the state of California, please refer to The Uniform Premarital Agreement Act.

Define: Prenup

A so-called “prenup” agreement (aka prenuptial,  antenuptial,or premarital agreement) is a written agreement between two future spouses.  

Why Should I Write a Prenup?

Prenups aren’t just for rich folks. A prenup can protect you from having to take responsibility for your spouse’s debts, for example. 
A prenup, can help you: 

  • State how your assets should be distributed 
  • Document property ownership
  • Lay out the separate property that each person brought to the marriage 
  • Determine the legal ownership of the property, assets and income that are acquired in marriage . 
  • Make decisions about how you and your spouse’s finances should be handled. 

With no prenup, if divorce or death comes along, the distribution of your assets is in accordance with the divorce and probate statutes where you live or where you were married.

Prenups in California and the Current Marriage and Divorce Laws

The legislation in the Golden State dictates the rights and obligations of married people. Nonetheless, some marital rights can be renegotiated and altered by agreement. Spouses can make decisions in advance of getting married as to the terms of their property shares during marriage or, if it should come to it, divorce.  

Terms outlining what to do upon the death of a spouse can also be dictated in the contract. 

For sure, prenups in California and the current marriage and divorce laws often diverge. Agreed upon terms can be different from the default procedure under the state legislation.  

How Can I Know if My Prenup is Valid or Not?

A prenup is only valid if: 

  1. The agreement is in writing, 
  2. It is voluntarily signed by both parties
  3. The wedding has taken place.

(In the case of domestic partnerships, the registration date  is just like the date of marriage, so your prenup would become valid on the registration date.)

If, by chance, a marriage is annulled, your prenup might turn out to be impossible to enforce, or in some cases, enforcement may only be possible to a minimal measure.
It is worthy of note that due to the intimate nature of the husband-wife relationship, simply mentioning or considering a prenup might raise the suspicion of undue influence. Such a presumption could be beneficial to either party who may later want to challenge the validity of the prenup in court.

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

Family courts are empowered to sanction a violation of fiduciary obligation in a divorce by awarding the whole value of an undisclosed asset to the spouse that was deceived about it. 

 

The Limitations of Prenups

There are some important limitations to the power of a prenup:

  • The Family Code in California states that “[t]he right of a child to [receive] support may not be adversely affected by a premarital agreement.” 
  • A court of law will only enforce clauses designed to limit spousal support if the spouse whose rights have been diminished had the opportunity to get their own attorney at the time they signed.
  • If a judge believes that a waiver of spousal support is unconscionable, he or she can decide not to uphold it and award support. 
  • Any agreement that indicates that persons must commit crimes or break laws cannot be valid. 
  • Certain life-style clauses, like clauses that set limits on visits from in-laws or that discuss how often you have sex usually are not enforceable by courts.

How to Write a Prenup Without a Lawyer

Much like with any contract, you can write a prenup without a lawyer.  There are templates around that you can use to get the job done.  That said, what comes into question is whether or not you can write a prenup that will be enforceable under the laws of the jurisdiction you’re in. 

A contract must contain these elements: 

  1. promise/s, 
  2. consideration, 
  3. and signatures
  4. witness or notary in some states. 

Different jurisdictions have their specific statutory and case law related to what is and is not allowed in a prenup, and an experienced attorney comes with the advantage of a deep understanding of what these are and how to apply them.