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What Should Be Covered in a California Prenuptial Agreement?

Posted on in Family Law

Santa Clara County prenup attorneyMost couples view marriage as a partnership of equals. They believe, for example, that major decisions should be made jointly and that there should be an equitable division of household responsibilities. It can be hard to achieve that sense of equal partnership, however, when a marriage begins with a major imbalance in terms of assets, debts, and/or family responsibilities. A prenuptial agreement (also known as a premarital agreement or prenup) can help put new spouses on a more equal footing. 

There are a number of things to consider when developing a prenuptial agreement, including California legal requirements and the personal needs of the spouses-to-be.

Your Prenup Must Meet Legal Requirements for Enforceability

The California Family Code includes a chapter titled the Uniform Premarital Agreement Act (UPAA). This law sets forth the requirements for a prenup to be legally enforceable:

  • The agreement must be in writing and signed by both parties voluntarily, without undue influence, fraud, or duress.
  • Each party must provide a fair and full disclosure of their assets and financial obligations.
  • Each party should be represented by their own lawyer.
  • If one person is not represented by a lawyer, that person must sign a document stating that they were advised to consult an independent attorney but chose not to do so and that they fully understand the terms and implications of the agreement. 

The unrepresented party must have at least seven days to review the prenup before signing it. 

A signed prenuptial agreement takes effect on the date of marriage. After the marriage, the agreement may be amended or revoked at any time by a written agreement signed by both parties.

Your Prenup Should Meet Your Personal Needs 

The UPAA allows a prenup to include virtually any agreement a couple may wish to make, including personal rights and obligations, as long as it does not violate public policy or criminal law. Here some questions that you may want to include in a prenup discussion with your spouse-to-be:

  • Will you keep separate bank accounts for your separate assets and contribute money to a third bank account which will be community property? Note that simply maintaining separate checking accounts does not, under California law, establish them as separate property. However, you can write such a “law” into your prenup.
  • How do you want to manage your money overall? For example, you can make an agreement that you will consult one another before making expenditures higher than a certain amount.
  • If you bring a particular asset into the marriage, such as a home or large investment account, will the other person “earn” a share of that asset per year of marriage? Or, do you both agree that that asset, including any appreciation during the time of the marriage, should remain 100% your separate property forever? This is one way of ensuring that, should your marriage break up, you will retain possession of that asset.
  • If you already have pets or expect to get more during your marriage, who will get the pets in a divorce?
  • If you have parents, siblings, or other family members who require significant support due to disability or another reason, how much will you contribute?
  • What should happen if the marriage does not last very long? For example, if you die within five years, you may want a larger percentage of your estate to go to your siblings or children rather than to your spouse.
  • In the event that one spouse develops a drug or alcohol use disorder or becomes abusive, should the other spouse get a larger share of the marital assets?
  • Do you want to waive the right of either party to receive spousal support in the event of divorce? If such an agreement would leave one spouse destitute, a judge may refuse to uphold that part of the agreement. However, your prenup can set reasonable limits on the size and duration of alimony payments. 

Choose an Experienced Los Gatos Prenup Lawyer

Whether you need a prenuptial, postnuptial, or cohabitation agreement, our experienced Los Gatos, CA family law attorney can help you develop an agreement that is legally enforceable and meets your unique needs as a couple and as individuals. Contact the Law Offices of Benita Ventresca at 408-395-8822 for a free initial consultation.

Sources:

http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=FAM&division=4.&title=&part=5.&chapter=2.&article=2.

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