What is a prenuptial agreement? Your Stockton divorce attorney can help you work through what it means for you if you have one… but what if you don’t?
If you’re like most people, you’ve heard the term – but what does this type of agreement do, and which party does it protect?
Here’s what you need to know.
What is a Prenuptial Agreement in California?
The state of California recognizes prenuptial agreements, which are also called premarital agreements or prenups. These agreements involve the property rights of a couple, and they become effective upon the couple’s marriage.
California also recognizes post-nuptial agreements, which are put together after a marriage has already taken place.
These agreements are enforceable in court during a divorce, but only if the spouse signing it has provided valid consent. That means he or she must have the mental ability to consent at the time, and the consent can’t be the result of fraud, mistake or inappropriate influence.
Prenuptial agreements made after 2002 can only be enforced if the spouse who signed it:
- Got complete information from the other spouse regarding his or her property and finances before signing the agreement
- Had at least a week between receiving the agreement for the first time and signing it, so that there was enough time to have an attorney review the agreement
- Was represented by a different attorney when signing, unless he or she received full information in writing about the terms and effect of the agreement (to include rights or obligations signing the agreement would cancel out) and he or she signed a separate document that acknowledged his or her receipt of that information, as well as identifying the person who gave that information and waiving the right to an attorney
What Can a Prenuptial Agreement Cover?
A prenup can cover separate and community property, spousal support if the couple divorces, and more, as long as what the couple agrees to in the document isn’t “unconscionable.” That means as long as the result isn’t extremely unfair, the prenuptial agreement – as long as it meets all the necessary conditions – will be enforceable in a divorce case.
Generally, the terms of a prenuptial agreement don’t favor the lower-earning spouse. In some cases, they require the lower-earning spouse to completely give up the right to spousal support. Some prenups change the nature of community property, too, such as earnings during a marriage; these would normally be considered community property, but through some prenuptial agreements, this money is treated as separate property during divorce. Spouses can also withhold inheritance rights (such as when one party has children from a previous marriage) to ensure that if they die, their estate goes to their own children rather than the new spouse.
Some Things Prenups Cannot Cover
Prenups can’t cover some things – including things that are illegal or “against public policy.” (“Against public policy” in this case means things that offend the “public sensibilities.” In other words, things that the public would find unconscionable.)
A prenuptial agreement can’t require one spouse to waive his or her share in an ERISA governed employee benefit plan (although a post-nuptial agreement can). It can’t take away minor children’s rights in the event of a divorce, either, although it can include provisions that the higher-earning spouse will provide money for college, pay higher-than-normal child support, or other actions that benefit the children.
Do You Need to Talk to a Stockton Divorce Attorney About Your Prenuptial Agreement?
Call us at 209-910-9865 or get in touch with a Stockton divorce attorney online to schedule a consultation today. We’ll discuss your case, find out about your circumstances and start formulating a plan that gets you and your family the best possible outcome.