Riverside Prenuptial Agreement Attorney

Posted By admin, On July 23, 2020

Also called antenuptial, premarital agreement, or prenup, for short, a prenuptial agreement is a contract signed by spouses-to-be, who are thinking about getting hitched.  In the 1980’s they gained popularity in the United States, but legend has it that even the ancient Romans used prenuptial agreements.

Why Would You Require a Prenuptial Agreement?

The legislation in the Golden State oversees the respective rights and obligations of domestic partners and spouses. While that may be the case, some of the marital rights can be renegotiated and modified by an agreement. Spouses are at liberty to decide in advance to come to an accord on the terms of their property shares during marriage or, if it should come to it, divorce.  Terms can even be decided for the eventuality of the unfortunate death of a spouse. The agreed upon terms can be divergent from the default procedure under the present state legislation.  If this is something they seriously want, then they would require a prenuptial agreement.  This is the option that makes most sense for achieving the outcomes they are going  for.

The prenup only has any validity after the wedding takes place. On top of that, if at some stage the marriage happens to be annulled, a premarital agreement might actually be impossible to enforce, or perhaps it enforcement can only occur to a minimal extent. For those in domestic partnerships, the date of registration is akin to the date of marriage, so an agreement would become valid on the registration date.

How Can I Be Sure if My Premarital Agreement is Valid?

For a premarital agreement to be valid, the agreement must be in writing, and needs to have signatures from both parties. The agreement can be modified at a later date or it can be revoked after the couple has already gotten married, but as we mentioned earlier, only in a written document signed by both of the spouses. It should be noted that due to the special, intimate kinship husbands and wives partake in together, any prenuptial agreement has the potential to raise the suspicion of undue influence. Such a presumption could prove advantageous to either party who may later be interested in challenging the validity of their prenuptial agreement before a judge.

In the California Family Code it states that the intimate, fiduciary connection between spouses “imposes a duty of the highest good faith and fair dealing on each spouse.” Indeed, family court judges have the power to sanction a violation of fiduciary obligation by awarding the whole value of an undisclosed asset in a divorce to the spouse that was kept in the dark about it. There aren’t any fiduciary relationships between lovers who are simply contemplating getting married. A presumption of undue influence would not apply in this case to a prenuptial agreement between such parties.

The Authority of Premarital Agreements

A prenup can address questions such as the interests of the future husband and wife in their separate and community property assets. These interests can be the right to sell, lease, buy, or mortgage real estate holdings. Even the drafting of a will, the formation of a trust, or the payout of a life insurance death benefit can rightly be placed under limitations by a prenup. At times, and with the highest level of notoriety, a prenup is brought to light in the context of the inkling of a separation or divorce. A spouse that otherwise, pursuant to California legislation, would be entitled to a support payment after a divorce, can validly deprive themselves of their own right to future alimony in a premarital agreement.

Prenuptial Agreement: The Limits of its Scope

Indeed, there exist several important limitations to the authority of prenuptial agreements:

  • The statute in the California family code that covers this topic expressly 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 place limits on spousal support if the spouse whose rights have been reduced had the opportunity to retain their own legal representation at the time they signed.
  • In the event that the courts deem the waiver of spousal support unconscionable, they will choose not to uphold it and award support. 
  • Any agreement that obligates the future spouses or future domestic partners to commit crimes or otherwise violate laws or public policy can be valid. 
  • Some types of life-style clauses, such as those curtailing visits from in-laws or dictating how often you have sex usually are not enforceable by courts.

The Question of Validity in Prenuptial Agreements

Courts view premarital agreements in a favorable light in general. Nevertheless, certain circumstances exist under which the agreement cannot and will not be enforced.  An example of this is if one of the spouses signed the agreement under coercion. Any form of coercion at signing, if it can be proven to a judge, will invalidate the agreement.

Moreover, there are some less glaring legal requirements that have an impact on whether a prenuptial agreement is valid or not. For the court to decide that a signature was indeed voluntary, the party who was presented with the contract must have either consulted with an independent attorney of their choosing, or they needed to, in writing, withdraw their right to have an attorney.

In accordance with California law, the future spouse must be allowed a minimum of seven days to consult a lawyer before signing a prenuptial agreement. The spouses are going to need to provide each other with “fair, reasonable, and full” disclosure of their respective requirements and all of their separate property, unless they, in writing, waive their privilege to such disclosure. If, for example, a wife has no lawyer representing her at signing, she would need be capable of giving a clear and appropriate explanation as to the contents of the contract to demonstrate that she understood what she signed.

Contrasting Opinions About Prenups

A prenup might actually birth some unexpected outcomes. There are people who believe that the obligation that is inherent in these kinds of agreements to expose all the facts and completely put forth the couple’s finances before the marriage makes it a requirement for them to be honest about such details.  In the absence of these disclosures up front, secrecy has the potential to lead to a divorce in the future. As some financial liabilities would not be effectively limited in a premarital agreement, the discussion surrounding these debts induced by the obligatory disclosures can forestall some unfortunate future altercations.

From a different perspective, there are those attorneys who find prenups “corrosive” when imposed upon a first marriage. The opinion was voiced in the context of a discourse surrounding the Petrakis’ high-profile divorce.  In their situation, a prenuptial agreement was invalidated for reasons of fraud and involuntariness. In that debate, one perspective said that “every married couple already has a prenup whether they want one or not. The laws covering marriage and divorce in every state are nothing more and nothing less than premarital agreements.”

The Uniform Premarital Agreement Act

To access the applicable California Statutes, please have a look at The Uniform Premarital Agreement Act.