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Mistakes to Avoid in California Premarital and Postnuptial Agreements

Posted on in Family Law

Santa Clara County prenuptial and postnuptial agreement attorneyMany people assume that they do not need a premarital or postnuptial agreement in place, because those types of arrangements are only for wealthy individuals who have been previously married. Others may believe that bringing up the topic of a marital agreement with their fiancé or spouse will lead to distrust. However, these myths could not be further from the truth. In fact, these agreements can help provide a couple with peace of mind, and they can establish financial expectations that will help couples avoid disagreements later on. Many couples also find that simply sitting down and discussing certain issues is a helpful process that fosters communication about money and provides a path toward a healthier financial life.

In addition, statistics show that millennials are waiting longer to get married, which means that they are bringing more assets into their marriages, including bank and investment accounts, real estate, savings accounts, stock options, retirement savings such as 401(k) accounts, etc. These couples may also bring in student loan debt and the introduction of other complex issues, such as pet custody and the disposition of frozen embryos upon divorce. As a result, there has been a sharp uptick in the number of requests for “prenups” in recent years. However, these agreements can be challenged in court if certain mistakes are made and they are improperly drafted without the assistance of an experienced attorney. Some of the most important mistakes to avoid include:


First and foremost, marital agreements must be fair and in compliance with the law. Premarital and postnuptial agreements cannot unreasonably favor one party or place one spouse in an untenable financial position in the case of divorce. In addition, there are certain issues that cannot be addressed in a marital agreement. For example, a prenup cannot make decisions about child support, because this is a legal obligation that is determined at the time of a divorce or separation based on what is in a child’s best interests. 

Hidden or Undisclosed Assets or Debts

Both parties must be upfront about their assets and provide each other with a full financial disclosure in order for a marital agreement to be valid. If any fraudulent information is provided, or if important information about assets or debts is not disclosed, a judge can invalidate the agreement. It is especially important to maintain very detailed accounting and financial records addressing any businesses started before and/or during the marriage. In California, any businesses started during the marriage are considered to be community property, and they must be divided between spouses unless they were otherwise addressed in a premarital or postnuptial agreement. 

Timing and Duress

Spouses will want to pay attention to timing and ensure a premarital agreement is not presented to one party at the last minute before the couple’s wedding. This could be considered duress, and a prenup could be found to be invalid because a spouse may have felt that they had no other option but to sign it. While there is no rule or law dictating an absolute deadline for when one party should ask the other to sign a marital agreement, it is best to discuss an agreement sooner to ensure that it will be valid.

Attorney Representation

Both parties should have their own individual attorney draft and/or review a prenuptial or postnuptial agreement. An attorney will be looking out for their client’s best interests, and they can identify any concerns and help negotiate terms that will protect their client’s rights.

Contact a Knowledgeable Los Gatos Family Law Attorney

Ultimately, prenuptial and postnuptial agreements provide protection for both parties. If you want to know more about how this type of agreement can provide you with protections if your marriage ends in divorce, the Law Offices of Benita Ventresca can answer your questions and help you create a prenup or postnup that will meet your needs. To arrange a free consultation, contact a skilled Los Gatos, CA marital agreement lawyer at 408-395-8822. 

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Los Gatos, CA 95030

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