San Francisco Prenup Lawyers

Posted By Max Soni, On November 7, 2020

What is a Prenup?
A prenup, or prenuptial agreement (aka antenuptial, premarital agreement), is a contract between two spouses-to-be.

Why Should I Get a Prenuptial Agreement?
Prenups aren’t just for wealthy fiances. A prenup can protect you from later having to take responsibility for your spouse’s debts and prevent arguments if you decide to divorce down the line, according to Rocketlawyer.com.
In a prenup, you will be able to:

  • Dictate how your assets are passed on
  • Decide the ownership of property
  • List the separate property that each person owned before the marriage
  • Dictate the legal ownership of any property, assets and income that come into the marriage .
  • Determine how you and your spouse’s finances should be handled

Without a prenup, if you divorce or one of you dies, how assets get distributed would be subject to the present divorce and probate statutes.

Does a Prenup Have to be Written by a Lawyer?
As with any contract, a person can create a prenuptial agreement without a lawyer. There are templates out there that you can use, some of which were purportedly reviewed by lawyers. The real question is whether or not you yourself can draft a prenup that can be enforced under the laws of your jurisdiction.

Each jurisdiction has different statutory and case law connected to what is and is not permissible in a prenup in California, and only an experienced lawyer would be aware of and understand what these are to properly advise you.

Prenups in California Sometimes Diverge from Marriage and Divorce Legislation
The Family Code in the Golden State dictates the respective rights and obligations of each spouse. That said, some marital rights could be renegotiated and modified by a contract. In advance, spouses can figure out terms of their share of property during marriage or, if it should come to it, divorce.

Terms can also be delineated in the contract to make decisions in case of the unfortunate death of a spouse,
Indeed, prenups in California can be divergent from marriage and divorce legislation.

How Can I Be Sure My Prenup is Valid?
For your prenup to be valid:

  1. he contract must be written,
  2. It must bear the signatures of both parties
  3. A prenup is only valid after the wedding date.

In cases where a marriage is annulled, any existing prenuptial agreements may actually be impossible to enforce, or enforcement may only be feasible to a minimal degree.

It is worthy of note that due to the special, intimate connection between husbands and wives, even talk of a prenup can raise the suspicion of undue influence. This presumption could present an advantage to either one of the spouses who might later challenge the validity of the prenup in court.

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

Judges in the family court have the 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.

Limitations of Prenups
Here are several important limitations to the scope of a prenup in California:

  • Alimony/Spousal Support A judge will not enforce clauses in the agreement which place limits on spousal support if the spouse whose rights have been diminished had no opportunity 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.
  • Child Support The California Family Code states that “[t]he right of a child to support may not be adversely affected by a premarital agreement.”
  • Obligation to Commit a Crime Any contract that obligates the one or both of future spouses to commit crimes or otherwise violate laws or public policy cannot be valid.
  • Lifestyle Clauses in Prenups Life-style clauses, like clauses limiting visits from in-laws or dictating how often you have sex normally cannot be enforced in a court of law.