FindLaw KnowledgeBasePublished: 2013-02-08
California residents entering into a marriage may wonder if they need a prenuptial agreement. Although most couples do not want to think about divorce before even being married, creating a prenuptial agreement is a practical approach to dealing with the reality that a substantial percentage of marriages end in divorce. A well-drafted prenuptial agreement can help protect valuable assets and prevent future complications.
What is a prenuptial agreement?
A prenuptial agreement is a contract that details the property and financial rights of each spouse in the event of a divorce. A prenuptial agreement is a wise choice for individuals with assets such as a home, investments or retirement funds. If one spouse plans to provide financial support while the other attends college, a prenuptial agreement is also a good idea.
Additionally, if children from a former marriage are involved, a prenuptial agreement is recommended. A prenuptial agreement is also suggested if there is an imbalance of wealth between spouses. Any couple that wants to protect themselves from court battles in the event of a divorce can benefit from creating a prenuptial agreement.
Prenuptial agreements in California
There are a few requirements to creating a valid prenuptial agreement in California. An agreement is valid if it is in writing and signed by both parties. The same requirements apply for modification or termination of the agreement.
The agreement should be signed well before the wedding to avoid any potential conflict or the appearance of coercion. A reasonable time period is one month before the wedding, and preferably before sending invitations.
It is important that both spouses are completely honest when providing information about their assets. A prenuptial agreement is invalid and unenforceable if information is intentionally concealed.
Prenuptial agreements allow couples to dictate whatever terms they want in the event of a divorce; most content of a prenuptial agreement is permissible unless it is illegal or contradicts public policy. Terms that potentially restrict any child support rights may also be held invalid.
Although spouses retain wide discretion as to the content of the agreement, courts look at the terms to ensure they are fair to each spouse. If the terms appear to leave one spouse with significantly less assets than the other, a court may require modification.
Additionally, courts do not look favorably on content that seems unreasonable, such as requiring a spouse to quit smoking or forcing children to practice a certain religion. If terms appear too absurd, the court may terminate the entire agreement
Property rights are usually the main reason for creating a prenuptial agreement. The agreement can cover such issues as who owns the rights to any separately or jointly owned property and how property will be divided in the event of a divorce.
Other common items in a prenuptial agreement include information regarding:
- Life insurance beneficiaries
- Wills or trust designations
- Choice of law preferences
Couples can choose which state’s laws will apply to the agreement. The agreement can be interpreted using California law or the law of another jurisdiction, depending on the couple’s preferences.
California couples considering creating a prenuptial agreement can benefit from speaking to an experienced family law attorney. The lawyer can provide valuable guidance and assist with creating and enforcing a valid prenuptial agreement.