Tag Archives: postnup attorney

ENFORCEABILITY OF PRENUPTIAL AGREEMENTS

In 1976 the California Supreme Court in the landmark decision of In Re Marriage of Dawley in which California’s Supreme
Court recognized that prenuptial agreements that contemplated divorce were not invalid per se and against public policy
but should be reviewed on a case by case basis to determine if they promoted marital breakdown. In 1986 California took
another important step in recognizing the validity of prenuptial agreements by adopting its version of the Uniform Premarital
Agreement Act which was further amended in 2002. This Act is now adopted in twenty four other states. The current version
of California’s Premarital Agreement Act is contained in Family Code sections1600-1617.

In order to ensure its enforceability any attorney drafting a prenuptial agreement (also referred to an antenuptial or
premarital agreement) should be familiar with the provisions of California’s Premarital Agreement Act and the case law.
For prenuptial agreements executed after January 1, 2002, the Family Code provides that an agreement will not be
enforceable if either (1) the agreement was involuntary or (2) the agreement was unconscionable and there was no
adequate disclosure or (3) the agreement violates public policy.

The following general conclusions can be learned from these requirements which are discussed in more detail below:

• Both parties should be represented by independent counsel
• Never wait until just before the wedding to sign a prenuptial agreement
• Always provide full, fair and reasonable disclosure of all income, assets and liabilities of both sides
• Ensure that the agreement is fair and does not leave one party without any means of support in the event of divorce

We take pride in efficiently representing clients throughout California who wish to enter into prenuptial and postnuptial agreements. The entire process can be handled over the phone. If you would like to speak with one of our attorneys, please fill out our potential client intake questionnaire or contact us at (949) 478-4401.

Initial telephone consultations are free of charge.

California Prenuptial Agreement: Top 3 Misconceptions

In California, property acquired during marriage is presumed to be community property, equally divisible in divorce. The exceptions to this are when property is acquired by gift, bequest, inheritance, or there is a prenuptial agreement in effect.

A prenuptial agreement is an agreement between prospective spouses in contemplation of marriage, to be effective upon marriage, that addresses present and future property rights.

Specifically, a California prenuptial agreement is used when a couple wants to avoid or modify the state’s community property law regarding assets already owned by each person, and to property and income acquired during marriage.

Misconception #1: Prenuptial agreements are unfair and unromantic.

In movies involving prenuptial agreements, one party is often trying to take advantage of the other party. The truth is, if a prenuptial agreement is very slanted in favor of one person, the other person will likely object to it during a divorce. Thus, attorneys drafting reasonable prenuptial agreements help their clients avoid problems in the long run.

In actuality, a couple working on a California prenuptial agreement is laying down rules for property and support in case of divorce. Prenuptial agreements are often used to preserve a person’s property rights.

Deciding how your finances will work before marriage may lead to a smoother marriage. Money is something many couples fight about, and it makes sense to discuss how the household finances will work.

As with any other partnership, two people would meet and formulate a plan for handling monthly expenses, financial obligations, savings, and other goals.

Misconception #2: A California prenuptial agreement is too expensive.

To quote a professional who recently got divorced and did not have a prenup, “They are expensive because they are worth it.” The reason prenuptial agreements cost thousands of dollars is that clients are paying for the attorney’s time in negotiating the terms of the prenuptial agreement, as well as the attorney’s signature approving the prenup.

Should a party ever contest the prenuptial agreement, the attorney will likely have to serve as a witness as to events concerning the execution of the agreement.

Misconception #3: Only really wealthy people need a prenup.

Anyone with significant income or with property or possessions valued at $10,000 or more should consider having a prenuptial agreement to protect his/her assets in the event of a divorce. Prenuptial agreements can protect an asset from becoming community property, divisible at divorce.

If a party has an asset that is valuable and would like to make sure he or she receives that asset in the event of a divorce, that person should consider a prenuptial agreement. California prenuptial agreements are commonly used by:

1. Two Professionals (e.g. they both have retirement plans and savings that they wish to preserve),

2. People Entering a Second Marriage (e.g. he or she would like to preserve assets for children from a prior relationship), and

3. People Who Inherit/Will Inherit, who would like to make sure the inheritance is preserved for future generations. Unlike an estate plan (e.g. will), prenuptial agreements take effect right away.

We take pride in efficiently representing clients throughout California who wish to enter into prenuptial and postnuptial agreements. The entire process can be handled over the phone. If you would like to speak with one of our attorneys, please fill out our potential client intake questionnaire or contact us at (949) 478-4401.

Initial telephone consultations are free of charge.

What are the legal requirements of a prenup?

The following is a list of requirements for the drafting of a valid prenuptial agreement in California. This is not meant to be an exhaustive list, but the bare minimum. If you would like to enter into a prenuptial agreement, you should consult with an attorney well versed in what California law says about prenuptial agreements.

1. A prenuptial agreement must be in writing and signed by both parties.

2. The agreement must be executed “voluntarily.”

3. Prior to the signing of the prenuptial agreement, a full disclosure of property and financial obligations of both parties must be made.

4. Either both parties must be represented by counsel or the party without counsel must acknowledge in a separate writing that he/she was advised to seek independent counsel and expressly waived the same.

5. The party presented with the prenuptial agreement must be given seven days from the initial presentation of the agreement to the date of execution of the agreement. (recent case law has determined that the 7 day waiting period does not apply if both parties are represented.)

6. If one party is unrepresented by counsel then he/she must be fully informed of the legal effect of the terms of the agreement and acknowledge in a separate signed document having understood the rights and/or obligations he/she is giving up by entering into the agreement.

7. If a spousal support is included in the prenup, the spouse against whom enforcement may be sought must be represented by independent counsel or the provision will be unenforceable. This applies even if there is an express waiver of independent counsel.

The best way to enter into a prenup that you can be confident will withstand attack is to require that your soon to be spouse has independent counsel. My office will not even draft a prenup for a client unless the other party is represented by his/her own attorney on the drafting and negotiating of the prenup. It’s just too easy for an unrepresented party to appeal to a court to invalidate a prenup. Better safe than sorry.

We take pride in efficiently representing clients throughout California who wish to enter into prenuptial and postnuptial agreements. The entire process can be handled over the phone. If you would like to speak with one of our attorneys, please fill out our potential client intake questionnaire or contact us at (949) 478-4401.

Initial telephone consultations are free of charge.