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Honest Considerations for Prenups




You may have heard about the importance of getting a “prenup” before getting married. However, that is a conversation that no one wants to have with their soon-to-be spouse. Fortunately, for some, prenuptial agreements don’t benefit all marriages. Read this blog to learn about the most important considerations when deciding whether to get a prenup.

What Is a Prenuptial Agreement?

A prenuptial agreement—also called a “premarital agreement”—is a contract that prospective newlyweds enter into before getting married. Prenuptial agreements—or “prenups” for short—govern how the couple’s property rights are treated when their marriage ends, either through one or both spouses’ deaths or through a divorce.

Do You Need a Prenuptial Agreement?

Whether a prenup is appropriate for you depends on the circumstances that are unique to your case. Determining whether you should get one involves weighing the benefits it provides against its disadvantages. The main benefits of a prenuptial agreement involve giving the parties control of their property rights and clarity regarding the expectations and responsibilities regarding the marriage.

Prenuptial agreements are particularly beneficially in the following situations:

  • Either or both prospective spouses has significant assets or financial obligations
  • One or both prospective spouses have obligations regarding children or former spouses from a previous marriage
  • The parties have agreed to an approach to resolving property division issues that differs from the default rules provided by applicable state family law rules

Issues Covered in a Prenuptial Agreement

Prenups typically cover issues primarily concerned with the property rights of the prospective spouses. These rights can involve real estate, retirement benefits, financial investments, bank accounts, family heirlooms, cars, and more.

A significant function of a prenuptial agreement involves the division of marital property during the divorce process. By default, state courts divide marital assets and liabilities according to state law. Most states use principles of “equitable distribution” when dividing marital property. Other states, such as California, rely on the “community property” system of asset division to determine the parties’ respective property rights upon divorce.

Some prenuptial agreements establish provisions regarding spousal and child support. However, most states will not enforce the provisions of a prenuptial agreement if it would adversely affect the right of a child and custodial parent to receive child support.

Independent Legal Representation for Prenuptial Agreements

Attorneys are typically in charge of drafting a prenuptial agreement. However, most states do not require the parties to retain independent legal counsel before enforcing the terms of a prenuptial agreement.

However, all states highly encourage the parties to consult an attorney about their rights when it comes to prenuptial agreements. This is to prevent a represented spouse from taking advantage of the unrepresented spouse.

For example, California courts will not enforce a prenuptial agreement if it was shown to be the product of fraud, duress, undue influence, or coercion. A prenuptial agreement is also unenforceable if a court determines that its terms are “unconscionable.” Courts will consider the terms of a prenup to be unconscionable if no reasonable person would have agreed to those terms.

Furthermore, California Family Code § 1615 prohibits the enforcement of prenuptial agreements unless the party against whom enforcement is sought had legal independent legal representation or waived legal counsel after being advised otherwise.

An amendment to Family Code §1615 was recently enacted and provides that prenuptial agreements entered into on or after January 1, 2020 are only enforceable if the party against whom enforcement is sought had at least seven days to consult an attorney before signing it.

Concerned About Your Rights? Contact Moshtael Family Law

If you are considering whether a prenuptial agreement is right for you and your future spouse, you should reach out to an experienced family law attorney from Moshtael Family law. A dedicated member of our legal team will evaluate the merits of your case to determine the best course of action for you.

Call us at (714) 909-2561 or contact our office onlineto schedule an initial consultation today.

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