Prenuptial Agreements

With divorce so common here in Orange County, it can be very wise for couples getting married to consider a prenuptial agreement. A “prenup,” as it is commonly referred to, can have a very unromantic perception to society at large. But it can be a wise choice. And when understood in the right context, as a tool for starting a conversation about your life together and what’s expected, it can be a very uniting process for a couple trying to establish a strong joint partnership together.

(Prenuptial agreements are governed by statue (Uniform Premarital Agreement Act, Family Code §1610 et seq.)

The Prenup Defined

A prenuptial agreement, also known as an antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenup, is a contract entered into by two people prior to marriage or civil union.

The content of a prenuptial agreement in Orange County can vary widely, but it commonly includes provisions for the division of property if the couple decides to get divorced. If you’re getting married, planning the details of a divorce may be the last thing on your mind, but consider how this can be a really intelligent step.

Proper Planning and Preparations Before Saying I Do

Strong marriages are built on an equal partnership and the first step in that direction is taken before you ever walk down the aisle. While preparing for marriage, you need to discuss how each of you feels about important issues like religion, parenting, taking care of aged relatives, where you will live, who will earn the money, how it will be spent, and if one of you will be a full-time parent.

Talking about such important matters now will help you understand each other better and encourage open communication from the start. What better time to chart the future of your marital partnership than when your love is strong?

This also includes discussing what would happen if the marriage ends. Again, this might seem unromantic, and even cold. But the discussion of what a divorce would look like can give you a really helpful point-of-view about your future life-partner, potentially making that union stronger.

Using a Mediator for Establishing an Orange County Prenuptial Agreement

Lawyers can potentially cause those that they represent to take sides and become combative. The attorney’s role is to be an advocate for one side, therefore the negotiations naturally become adversarial by virtue of that. This is hardly the situation you want to create when you’re planning on getting married and excited about what should be one of the best days of your life! Which is probably why so many couples here in Newport Beach and other Orange County towns, who perhaps would be interested in setting up a prenuptial agreement, commonly avoid it. Who wants to get a lawyer and start all that mess when you’re choosing wedding flowers together?

Choose an Experienced Licensed Family Law Mediator to Help with Your Contract

Mediation is a perfect alternative for creating a prenuptial agreement here in California. In this process, a mediator facilitates an open discussion between the couple about all kinds of marital issues, like expectations about working after children are born, saving and spending styles, as well as the traditional premarital discussions about property division and spousal support if the marriage is terminated. The engaged couple makes all of the decisions about what would happen in the event of a separation or divorce with the assistance of the mediator.

If the couple does have their own attorneys, the agreement can be reviewed by their respective parties. An agreement developed via mediation is typically less expensive because fewer hours are spent with lawyers. The couple has made all of the decisions together, rather than in a one side vs. the other scenario.

Some Financial Purposes of Prenuptial Agreements

Prenups are often designed where one of the parties intends or seeks to protect his or her wealth in the event of the marriage ending in divorce. The contract tries to achieve a measure of certainty about what the financial results will be if the marriage comes to an end.

K v K (2003) has heightened the importance of prenuptial agreements by deciding that partners have to stick by the terms of a prenuptial agreement they have signed. The courts still keep their discretion about whether or not a prenuptial agreement will be upheld, but this recent case shows that the courts are in favor of couples making private agreements between themselves, and upholding those contracts.

What can a Prenup do?

In Orange County, prenuptial agreements are, at best, a partial solution to removing some of the risks of marital property disputes in times of divorce. They are not the final word. Nevertheless, they can be very powerful, and limit parties property rights and alimony.

It may be impossible to set aside a properly drafted and executed prenuptial agreement. A prenup can dictate not only what happens if the parties divorce, but also what happens when they die. It can act as a contract to make a will and/or eliminate all your rights to property, probate homestead, probate allowance, right to take as a predetermined heir, and the right to act as an executor and administrator of your spouse’s estate.

When Should Prenuptial Agreements be Made?

Under the Statute of Frauds, a prenuptial agreement is only valid if it is completed prior to marriage. It has no effect if it is drawn up after marriage.

After a couple is married, they may draw up a post-nuptial agreement.

What can’t Premarital Agreements do?

Prenuptial agreements in all U.S. states are not allowed to regulate issues relating to the children of the marriage, in particular, custody and access issues. The reason behind this is that matters involving children must be decided in the children’s best interests.

This is a controversial issue: some people believe custody battles are the worst part of a divorce, and that couples should be able to settle this in advance.

Prenuptial Agreements in California

In California, a prenuptial agreement is very powerful. A couple can waive their rights to share property (community property). It can limit spousal support (although a court at the divorce can set this aside if it deems that the limitation is unconscionable). The agreement can act as a contract, making a will,  requiring one spouse to provide for the other at death.

It can also limit rights at death, such as the right to a probate allowance, the right to act as an executor, the right to take as a predetermined heir, and so forth.

In California, Registered Domestic Partners may also enter into a prenuptial agreement. These kinds of contracts can have added complexities because the Domestic Partners don’t have the benefit of federal tax law that favors married couples.