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Sometimes known as antenuptial, premarital agreements, or prenups, for short, a prenuptial agreement is a contract between spouses-to-be, who are considering getting hitched. In the United States, they gained popularity in the 1980’s, but it is said that even the ancient Romans signed them.
Why Would You Need a Prenuptial Agreement?
The legislation in the state of California oversees the mutual rights and obligations of spouses and domestic partners. Be that as it may, some of these obligations can be renegotiated and modified by agreement. Spouses may decide in advance to agree upon the terms of their property allocation during marriage or in the event of a break up, or in the case of the unfortunate death of a spouse in a different fashion than is the default procedure under the present state law. If they do, then they would need a prenuptial agreement. This is the appropriate option for achieving the desired results.
A prenup only becomes valid when the signers wed. If at some stage the marriage happens to get annulled, a premarital agreement might actually be unenforceable, or maybe it can only be enforced to a minimal extent. With respect to domestic partnerships, the date of registration is the akin to the date of marriage.
How do I Know if My Premarital Agreement is Valid?
To be deemed valid, the premarital agreement has to be in writing, and must be signed by both parties. A prenup can be later modified or revoked after the couple has already gotten married, but as we mentioned before, only in writing, with the signatures of both of the spouses. It is worth noting that, due to the special, intimate bond husbands and wives share, any premarital agreement has the potential give rise to the presumption of undue influence. This presumption might provide an advantage to either party who may later seek to invalidate a prenuptial agreement in court.
The California Family Code provides that the intimate, fiduciary relationship between spouses “imposes a duty of the highest good faith and fair dealing on each spouse.” For example, family court judges have the authority to sanction a breach of fiduciary obligation by awarding the full value of a heretofore undisclosed asset in a divorce to the spouse that was misled. There are no fiduciary relationships between paramours who are simply contemplating marriage. A presumption of undue influence would therefore not apply to prenuptial agreements.
The Purview of Premarital Agreements
A prenuptial agreement can touch on questions such as the interests of the future spouses in their separate and community property holdings. These interests encompass the right to buy, sell, lease, or mortgage any real estate. Even the creation of a will or a trust, or disbursement of a death benefit from a life insurance policy can rightly be placed under limitations by a prenup. Oftentimes, and with the highest level of notoriety, a prenup is resuscitated in the context of a potential separation or a divorce. A spouse, who otherwise, pursuant to California law, would be entitled to alimony after a divorce, can validly give up the right to future spousal support in a premarital agreement.
The Limitations of A Prenuptial Agreement
All that said, there are indeed some key limitations regarding the subject of prenuptial agreements:
Validity of Prenuptial Agreements
Generally, courts look upon premarital agreements with favor. Nevertheless, there are circumstances under which the prenup cannot and will not be enforced: for instance, if one of the two spouses did not put their signature on the agreement voluntarily. Any type of coercion at signing, if it can be proven, will invalidate the agreement.
In addition to that , there are some less obvious legal requirements that have an impact on the validity of a prenuptial agreement. For the court to find that a signature was voluntary, the party presented with the contract must have either sought the advice of an independent attorney of their choosing, or needed to, in writing, forfeit their right to have an attorney.
According to California law, the future spouse has to be granted at least seven days to consult an attorney before signing a prenuptial agreement. The spouses are obligated to provide each other with “fair, reasonable, and full” disclosure of their respective requirements and separate property holdings, unless they waive their right to such information in writing. If a wife has no attorney representing her at signing, she must also be capable of giving a clear and appropriate explanation as to the contents of the contract.
Premarital Agreements: General Opinions
A prenuptial agreement may actually birth some unexpected results. There are individuals who believe that the obligation inherent in such an agreement to expose everything and completely lay out the couple’s finances before the marriage forces them to be honest about such details. In the absence of such disclosure up front, secrecy could lead to a divorce down the line. As some financial liabilities cannot be effectively limited in a prenuptial agreement, the conversation about these debts induced by the obligatory disclosures can forestall some headaches in the future.
On the other hand, some attorneys who find prenups “corrosive” when imposed upon a first marriage. This comment was voiced in the context of a debate over the high-profile divorce of the Petrakis’. In their case, a prenuptial agreement was invalidated because of involuntariness and fraud. In that discourse, one perspective offered was 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
For the relevant California Statutes, please refer to The Uniform Premarital Agreement Act.
A Bit of Background About Prenups
Even though prenups, also referred to as antenuptial or premarital agreements, only became hot in the US during the 80s, historians have said that even the ancient Romans had them.
A prenuptial agreement is a contract signed by both fiances who are engaged to marry.
The family code statutes related to marriage describe the legal rights and obligations of domestic partners and spouses. Some of these rights can actually be renegotiated and re-engineered in an agreement. Terms can even be put in place for the eventuality of the untimely passing of a spouse.
If these are things one or both individuals in the engagement want to achieve, then a prenup is a great option.
Can You Get a Prenup With 1 Lawyer?
If you are on the receiving end of a prenuptial agreement, then having your own legal counsel to represent you at signing is critical.
A 2018 article in Forbes Magazine describing the uncharacteristically clandestine nuptials of Justin Beiber and Hailey Baldwin advises you to “Get your own counsel. Justin and Hailey should each have their own attorneys to represent them regarding the prenuptial agreement.” In fact, some states require that both parties have a lawyer for a prenup. So in answer to the question, you can get a prenup with 1 lawyer, but it is not a wise way to go.
Enforcing a Prenup That was Signed by an Unrepresented Spouse
The issue of whether a signature on a prenup was truly voluntary may come up when it needs to be enforced. In such a scenario, a judge would inquire if the party who was presented with the prenup was given time to consult with their own attorney, or if they waived their right to have an attorney in writing.
Said party must have been granted a minimum of seven days according to the California code to speak with an attorney before signing. For example, perhaps Richard has no lawyer representing him at signing. If he signed the prenup anyway, he must be able to present a clear and correct explanation of what’s in the contract to show that he understood what he was signing.
Although neither party is legally required to have counsel, courts tend to be less willing to enforce a prenup signed by an unrepresented spouse. Under such circumstances, especially if the prenup looks to be disproportionate against the party that lacked representation or if there are questions about coercion or duress, a judge might invalidate the prenup completely.
The Marital Fiduciary Obligation
For a prenup to be deemed valid, it must be a written contract and be signed by both parties in the marriage. It is worth noting that due to the unique and intimate connection between husbands and wives, the very existence of a prenup can create suspicions of undue influence.
The law dictates that the intimate, fiduciary relationship between married persons “imposes a duty of the highest good faith and fair dealing on each spouse.” Family courts are authorized to levy penalties against violators of this marital fiduciary obligation.
Bear in mind that there is no fiduciary relationship between fiances. Therefore, the presumption of undue influence would not apply until after the wedding.
The Authority of a Prenup in the state of California
Some key limits to the authority of a prenup:
The Uniform Premarital Agreement Act
For a comprehensive list of the applicable statutes regarding prenups in California, please see The Uniform Premarital Agreement Act.
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