Prenuptial Agreements
As a protective document, a prenuptial agreement is a device that couples can use to guard themselves financially in terms of property ownership, property division, and alimony. As a symbol of a relationship, however, prenuptial agreements are a paradox in today's society. With divorce rates hovering around 50%, it seems to be the smart thing to do - especially if one party has significant financial holdings. On the other hand, prenuptial agreements can be seen as an indicator that one party does not truly believe in the relationship. The truth is that if a couple truly cares about each other, it's never a mistake to take the smarter path to ensure equal protection.
A properly drawn-up prenuptial contract is usually binding in California, as courts are very reluctant to set aside promises that are voluntary, knowing, and bargained-for exchanges. A prenuptial agreement regarding property and support can be set aside if clear proof of coercion, duress, fraud, undue influence, or similar bad intent on one of the parties exists. There are many advantages in having a prenuptial agreement. Both parties will know ahead of time what happens to their assets if the marriage ever dissolves. Issues of property distribution (who gets to keep what), support payments (who pays who and for how long), and child custody can be clarified to avoid potential hurtful confrontations. In addition, those who have had a previously messy divorce settlement may see a prenuptial agreement as a safety net for both sides.
If one party wishes to get out of the contract provisions affecting property and spousal support, the objecting party will most likely be held to his or her bargain. On the other hand, if one party later objects to provisions that attempted to permanently fix that agreement in terms of custody and child support, a court will decide the future of the children on its own. The court is never required to enforce prior agreements regarding custody and child support if the objecting party proves that a different arrangement is more appropriate.
An important caveat in this area regards the complexity that comes with contracts involving marriage. Premarital agreements require skillful drafting to navigate the complicated sets of property rights and should only be drawn up by an experienced practitioner familiar with premarital divorce planning. There's nothing worse than discovering later that the details were not written correctly and that the agreed-upon plan set by both parties isn't what will actually happen.
Despite those potential pitfalls, a properly drafted premarital agreement is probably the best protection available to prevent any unwanted issues arising regarding your property. Prenuptial agreements can even override California's community property laws. For example, let's assume one party owned several rental properties prior to marriage. As a married couple, the couple plans to improve and manage the properties. Community property laws state that active property appreciation gained from improvements made by the marital unit are considered marital property, even if the properties are kept in your name. Notwithstanding the law about active appreciation, however, the couple can enter into a premarital agreement providing that such increases in real estate value during the time of marriage will not be deemed marital property that would otherwise be subject to equitable distribution. This agreement would be enforceable over California community property laws.
The Law Offices of M. Tilden Moschetti can help you and your fiancee prepare a prenuptial agreement that will protect each of you, help you both determine how finances will work, and, in the worst case scenario, stand up in court. Call me at
Articles
Is A Prenuptial Agreement Right For You?
What You Can (And Can't) Do With A Prenuptial Agreement
Top 10 Reasons Why A Prenuptial Agreement May Be Invalid
Codes
Family Code §1500
Family Code §1502
Family Code §1610
Family Code §1611
Family Code §1612
Cases
In re Marriage of Pendleton & Fireman (2000), 24 Cal. 4th 39
In re Marriage of Shaban (2001) 88 Cal.App.4th 398
In re Marriage of Weiss, 42 Cal. App. 4th 106
