This article will focus on the drafting of prenuptial or
premarital agreements in California presently and deals with the most recent
laws governing these agreements. You
NEED a lawyer if you are going to draft one of these agreements in order to
navigate the complex and strict statutory requirements. You NEED a lawyer because the agreement must
be upheld in court. With the way the
California Family Code statutes are written you will fail if you do not follow
the exact steps and meet every single requirement.
Some of the reasons why you might consider a prenuptial
agreement in California is to avoid or alter the default California Community
Property laws. You also may want to
alter the characterization of income acquired in the future such as earnings
and so forth. You may also want to
eliminate or minimize the surviving spouse’s inheritance rights. Whatever your reason, if you have substantial
assets and you are contemplating marriage or even if you don’t, you should talk
to an attorney about a prenuptial or premarital agreement.
The difficult thing is to broach the subject with your
future spouse the subject of obtaining a premarital agreement. Often and understandable, people simply do
not want to contemplate anything that could be perceived as negative. However challenging it may be to bring the
subject up, it may be the best and most prudent thing you can do. An effective premarital agreement will make understandable
the obligations between spouses both during and if separation or dissolution
occurs. Often litigation costs will be
lowered because if you have an iron clad premarital agreement, the other party
will not even bother litigating it saving both spouses an added headache. A well drafted and effective premarital
agreement will possibly solve problems of commingled property.
Prenuptial Agreements can deal with an assortment of topics
or issues. For example, parties can put
in a provision for Spousal Support.
Parties can even waive Spousal Support in the agreement if each party is
represented by independent counsel. On
the other hand, premarital agreements cannot waive child support. Essentially, you can put anything you want in
a prenuptial agreement unless it violates California Public Policy.
The real nuts and bolts of premarital agreements are located
in California Family Code §1615. This is
why you NEED an attorney to draft and navigate you through the process. Prenuptial agreements cannot be unconscionable. Ok this sounds reasonable. To not be unconscionable you need a fair,
reasonable, and full disclosure of property of financial obligations by each
party. This means that you must disclose
property that you hold to your prospective spouse and once this is completed
you need to have your prospective spouse sign a waiver that waives further
disclosures.
Further, prenuptial agreements, according to California
Family Code §1615, must have voluntariness.
Voluntariness is defined by the statute and includes all of the
following: the prospective spouse must
be represented by counsel at the time of signing the agreement or after being
advised to seek independent counsel expressly waives in a separate writing
representation by independent counsel.
This means that aside from the prenuptial agreement itself, you need a
waiver of representation by independent counsel that is essentially a separate
agreement not to obtain counsel for the purposes of the prenuptial
agreement. Also, seven calendar days
must pass before the prospective spouse receives the agreement and the time it
is signed. During these seven days,
counsel who drafts the prenuptial agreement must fully inform the prospective
spouse of the terms and basic effect of the agreement as well as the rights and
obligations he or she was giving up by signing the agreement. Further, the prospective spouse must be proficient
in the language of the explanation and the language of the agreement.
Essentially, if you miss or do not follow any of the steps
in the above paragraph your agreement will be deemed not to have voluntariness
and will be worthless no matter how voluntary it appeared to be at the time of
the signing agreement. California Family
Code §1615 acts as a checklist for voluntariness if you do not check off all
the boxes you agreement will be invalid and will not hold up in court and all
of your expectations of what you thought your rights were will be
extinguished.
I implore you that if you are going deciding to draft or
purchase an agreement online to get an attorney to assist you with the process
otherwise you are simply wasting your money and time.
