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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.
Indeed, there exist several important limitations to the authority of prenuptial agreements:
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.
About Prenuptial Agreements
Back in the 80’s prenuptial agreements, also known as antenuptial or premarital agreements, grew popular in American culture. Referred to as a prenup for short, a prenuptial agreement is a contract signed by two people who intend to marry.
The relevant statutes in the Golden State lay out the rights and obligations of domestic partners and spouses. A few of these rights can be renegotiated and modified by an agreement. Spouses may decide on certain terms in advance. Stipulations can even be decided for the eventuality of the untimely death of one of them.
The stipulations in a prenup can diverge from the default statutes under the present state legislation. If this is something one or both fiances are interested in, then a prenuptial agreement is the route to accomplishing it.
Can I Sign a Prenup Without a Lawyer?
If you are on the receiving end of the prenup, then having legal counsel at the time you sign is wise. That said, you are at liberty to waive your right to an attorney and sign the prenup without a lawyer at your own risk.
Signed Without a Lawyer: Enforcing a Prenup
For the court to say that a signature on a prenup was actually voluntary, the party who was presented with the prenup must have either talked to legal counsel of their own choosing, or they must have, in writing, forfeited their right to representation.
According to California law, said person had to be allowed a minimum of seven days to consult an attorney before they sign a prenuptial agreement. Let’s say Serenity and Josh are engaged to be married. Josh’s lawyer draws up a prenup and sends it to Serenity to sign. If she has no lawyer to represent her, a court may ask her to present a clear and complete explanation as to the contents of the contract to show that she understood what she was signing.
Although the law does not mandate that either party is obligated to have legal representation, courts will more heavily scrutinize a prenup signed by a party that didn’t have independent legal representation. In scenarios like these, especially if the prenup contains enough clauses that are unjust to the party that didn’t have a lawyer or if there are concerns about coercion or duress, a court might invalidate the prenup altogether.
Can I Be Sure if My Prenup is Valid?
For a prenup to be valid, it must be in writing and signed by both parties. The agreement might later be modified or revoked after the couple has already married each other. Changes like these also require a written contract signed by both of the spouses. It is worth noting that because of the unique and intimate kinship that naturally exists between married couples, the mere discussion of a prenup can raise suspicions of undue influence.
The law states that the intimate, fiduciary link between spouses “imposes a duty of the highest good faith and fair dealing on each spouse.” Family courts retain the right to penalize any violation of fiduciary obligation.
To be clear, there aren’t any fiduciary relationships between couples who have not married yet. The presumption of undue influence would not apply to that case.
The Scope of a Prenup in California
Some key limits of the scope of a prenups are:
The right of a child to receive support cannot be interfered with affected by a prenup
Uniform Premarital Agreement Act
Take a look at all the applicable statutes connected to prenups in California by referring to The Uniform Premarital Agreement Act.
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