Do prenups work? For most people, they do – but there are certain things that can make a prenuptial agreement unenforceable when you go to court. The language in a prenup has to be crystal-clear; otherwise, either party can argue it in court.
Here are the basics about how – and why – prenups work, as well as what makes them invalid.
Do Prenups Work?
Prenuptial agreements work when they’re executed properly. In order to be executed properly, both spouses must have:
Received 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
Been 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
Further, prenups have to be fair to be enforceable. If the judge in your case sees that the prenup is extremely unfair to one spouse – such as leaving him or her with nothing but the clothing they owned at the time of the marriage – the judge isn’t likely to uphold it in your case.
Prenuptial agreements can only address certain things, too. Some things are off-limits, such as anything pertaining to the couple’s future children.
Fairness matters. The court will look at your prenup to make sure it’s not going to leave one spouse destitute while the other takes it all.
Full disclosure is required. Both parties are legally obligated to disclose the truth about everything in a prenuptial agreement.
Premarital assets are usually off-limits to both parties. Most often, prenups separate premarital assets and designate them to remain with their original owners. While that’s usually the case anyway – separate property remains separate under California law – there are always exceptions.
You can set terms for alimony. Many prenups set terms for spousal support, often requiring the lower-earning spouse to waive his or her rights entirely.
You can’t include anything having to do with your (future) children. Prenuptial agreements can’t include things like child support amounts or child custody arrangements. Those things are always based on what’s best for the child at the time – and the courts won’t enforce prenups that demand custody or limit the amount of child support that one spouse will have to pay.
Do prenups work all the time? No. Some things can make a prenuptial agreement invalid, such as when they:
Are not in writing
Are not properly executed
Were signed under pressure from one spouse
Weren’t read fully before signing
Were rushed to the point that the signing spouse didn’t have adequate time for consideration
Contain invalid provisions
Contain false information
Contain incomplete information
Were signed without consulting with an attorney, unless the signer waived his or her right to counsel
Are unconscionably unfair
Can You Fight Your Prenup?
You can argue a prenuptial agreement in court. It’s up to the judge whether it’s enforceable – and in some cases, some parts of a prenup are enforceable while others are not. For example, the judge may rule that waiving spousal maintenance is fair, but that requiring one spouse to move out of the marital home and give up his or her vehicle may be unenforceable.
Do Prenups Work? Sometimes. Here’s How to Get Legal Help.
If you need to talk to an attorney about a prenuptial agreement, we may be able to help you. In fact, we can help you with any aspect of your divorce. Call us today at (209) 546-6870 or get in touch with a Stockton divorce attorney online to schedule a consultation.
Dividing retirement assets in a divorce can be complicated – and in many cases, it requires preparing a QDRO and hiring a professional to get an accurate value. Even if it’s relatively simple, you’ll still need to account for it in your divorce settlement. In many cases, you’ll have to split some of what’s in your retirement account.
In some cases, both spouses agree to keep their own pensions and retirement accounts without taking any part of the other spouse’s. However, when one spouse doesn’t have a retirement account – or when one has a much smaller retirement asset than the other does – the courts may order the couple to split these assets.
You are absolutely free to reach your own agreement with your spouse rather than fighting over retirement assets in your divorce. In fact, your attorney will probably suggest that you come to an agreement on your own rather than litigating; that’s because it’s simpler and more cost-effective for you to hash things out with your spouse.
Unfortunately, some spouses are completely unwilling to negotiate. In cases like those, your attorney can fight hard to preserve your rights and ensure that dividing retirement assets in your divorce is a fair, equitable process.
Dividing Retirement Assets in a Divorce: Community or Separate Property?
Retirement assets can be community property – as in they belong to both of you – or they can be separate property that belongs only to one spouse. They can even be a mix of the two.
Retirement Assets as Community Property
Retirement Assets as Separate Property
If you contributed to your pension while you were married, it is most likely community property unless you addressed retirement assets in a valid prenuptial agreement.
If you contributed to your retirement assets before you were married, but not during your marriage, it’s most likely considered separate property that belongs to you alone.
What if the Retirement is Covered in a Prenup?
Many divorcing couples in California have prenuptial agreements, which can cover all kinds of things about property division. In your prenup, you and your spouse may have agreed to several things, including the rights and obligations you each have when it comes to property (even if it was acquired during your marriage) and spousal support.
If a retirement account is included in your prenuptial agreement, it’s a good idea to talk to your attorney about it. The prenup can’t be grossly unfair – if it is, the court may find that all or part of it is invalid.
How Does Payout Work After You Divide Retirement Assets in a Divorce?
If one spouse is entitled to part of the other spouse’s pension, the payout depends on the plan. Different retirement systems have different processes.
For example, when you’re dealing with a military retirement account, the length of the marriage determines whether the participant (the person who earned the benefit through military service) pays the alternate payee (his or her spouse) or the money comes directly from the Defense Finance and Accounting Service.
In other cases, such as when you must file a qualified domestic relations order, or QDRO, the payout usually takes between 60 and 90 days. That’s because the plan’s administrator has to process the documents and set the wheels in motion. Every plan is different, however, so yours may happen more quickly or it may take longer.
The bottom line: When you divide retirement assets in a divorce, several factors determine how the payout works and how long it takes. Your Stockton divorce attorney will be able to give you more specific guidance when she has all the facts of your case.
Do You Need to Talk to a Lawyer About Dividing Retirement Assets in a Divorce?
If you need to talk to an attorney about dividing retirement assets in a divorce, we’re here to help. Call us at 209-546-6870 to schedule a consultation with an experienced divorce and pension attorney. We’ll answer your questions and start building a strategy that gets you the best possible outcome.
If you’re getting a divorce in Stockton and you’ve signed a prenuptial agreement – commonly just called a prenup – here’s what you need to know.
What is a Prenup in California?
A prenup is a legal document that can help one party’s assets in a divorce. The Uniform Prenuptial Agreement Act covers prenups under California law. The law says that parties to a prenup – in this case, you and your spouse – can agree to things like:
The rights and obligations of each party in any of the property, regardless of where or when it was acquired
Spousal support if the couple divorces
The making of a will, trust or other arrangement to carry out the agreement’s provisions
The ownership rights of a life insurance policy’s death benefits
Other matters that don’t violate public policy
The content of the agreement can’t be extremely unfair, though – if it is, the judge in your divorce will most likely rule against it.
A prenup is only valid if both parties signed it knowing full well what they were signing.
If the court finds that it’s valid, there may still be some parts of it that the court views as unenforceable. For example, if there’s something that’s extremely unfair in it, the court can rule against it.
Sometimes, attorneys can fight against a prenup in court.
Prenuptial agreements made after 2002 are only enforceable if:
Both spouses have received complete information from the other spouse about property and finances before signing (meaning the other party was honest at the time)
The spouse who agreed to the prenup had at least one week between receiving it for the first time and signing it (that gives the person enough time to have an attorney review it)
The spouse who signed it was represented by an attorney of his or her own when signing it, or received full information in writing about the terms and effects of the agreement, as well as having signed a separate document that says he or she did receive that information
Does a Prenup Protect One Party From Paying Alimony?
A prenup can protect one party from paying alimony. However, in the past, courts have ruled that a waiver of alimony can only be enforced when spouses have pretty equal education and intelligence and who were both self-sufficient when they made the agreement.
If one spouse would need to go on public assistance to live while the other suffered no such hardship, that’s an example of extreme injustice – and the court may elect not to honor that part of the prenup.
Does a Prenup Protect One Party From Paying Child Support?
Prenups cannot address child support. California law requires that both parents are responsible for the support of their children, and the state uses a complex formula to determine how much child support will change hands in a divorce.
Your prenup might address community property in a way that prevents you from having to divide it. In some cases, things like earnings during a marriage (which are ordinarily divided) can remain separate property. That means the spouse who earned them is the spouse who is entitled to them.
Inheritances and other assets can be addressed, too. For example, a parent with children from a prior relationship may use a prenup to exclude his or her current spouse from inheritance rights – that way, he or she can ensure that any inheritances are divided among the kids, rather than the kids and the spouse.
Do You Need to Talk to a Divorce Lawyer About Your Prenup?
If you’ve signed a prenuptial agreement and you’re getting a divorce, we may be able to help you.
Call us at (209) 546-6870 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.
Having a premarital agreement—commonly called a prenuptial agreement or prenup—can change the divorce process significantly.
If you don’t have a premarital agreement in place, that doesn’t mean you won’t get a fair and equitable distribution of your marital property. California law requires divorcing couples to divide community property equally unless you have a prenuptial agreement in place.
What’s a Prenup or Premarital Agreement?
A premarital agreement, or prenup, is a legal contract set up by a couple who intends to marry. It can contain a wide range of information, including what happens to individual assets if the couple divorces.
What Can You Include in a Premarital Agreement?
A premarital agreement can contain anything you’d like to put in it, but some of the most common items these legal contracts cover include:
A list of each party’s individual assets that they’re bringing into the marriage
Information on which individual assets will remain individual assets in the event of a divorce
Limits on spousal support in the event of a divorce
How a Premarital Agreement Affects the Divorce Process
A premarital agreement can take a divorce one of two ways: it can make it easier or it can make it more complicated.
If you have a premarital agreement in place, you won’t have to negotiate over property division or other issues that the prenup includes. You probably won’t need the court to intervene and make decisions on your behalf, either. Both of those things save you time and money.
However, sometimes having a prenup can negatively affect your divorce—such as when one spouse asks the court to reject it. This can cause your divorce to take longer than it ordinarily would, and it typically always costs more in legal fees, too.
Can You Ask the Court to Reject Your Premarital Agreement?
You can ask the court to reject your premarital agreement, but you must have a legitimate reason. The judge in your case will be the one who determines whether your reason for wanting to abandon the premarital agreement is legitimate.
In some cases, prenups are actually invalid (and that’s one of the most common reasons people contest them during divorce).
What Makes a Prenup Invalid?
For a premarital agreement to be valid under California law, it must meet certain criteria. You must have it in writing, and it must be free from fraud.
Your premarital agreement may be invalid if either party was:
Under duress
Coerced
Mentally incapacitated
Finally, if the agreement is “unconscionable,” which means that it’s incredibly unfair to one spouse, the court may find that it’s invalid.
Do You Need to Talk to a Divorce Attorney About Your Premarital Agreement?
If you need to talk to a Stockton family law attorney about your divorce and premarital agreement, we may be able to help you.
Call us at 209-910-9865 for a complimentary case evaluation. We’ll be able to give you case-specific legal advice you can use moving forward.
