Angelina Jolie and Brad Pitt had a prenuptial agreement. So did Katie Holmes and Tom Cruise.
If you are engaged to be married, will you also need a prenuptial agreement?
Prenuptial agreements are quite common among the Hollywood glitterati, but are they really necessary for the typical couple who are about to be married?
A prenuptial agreement is a legal and a financial contract that a couple prepares with the assistance of one or more family law attorneys. The agreement takes effect at the moment of marriage.
WHAT CAN A PRENUPTIAL AGREEMENT DO?
A prenuptial agreement that is signed by both marital partners prior to a wedding can resolve in advance most of the disputes that would otherwise emerge in a divorce process.
The most basic prenuptial agreement lists the assets that will remain with the original owner if a divorce takes place.
Prenuptial agreements can protect the property that prospective spouses have acquired prior to a marriage, such as cash in a savings account, a home or property, or an antique inherited from your grandparents.
A “prenup” can also protect each marital partner from the other’s debts, and it can even establish an alimony agreement and an alimony amount should a divorce occur.
Prenuptial agreements can ensure that future income earned during the marriage from a business or future assets accrued through inheritance are not to be shared if the marriage dissolves.
WHY ARE SO MANY COUPLES NOW SEEKING PRENUPTIAL AGREEMENTS?
Prenuptial agreements are growing in popularity and acceptance for a number of reasons.
People who have been married previously are especially aware of the importance of taking protective measures the second time around, according to Lynne Gold-Bikin, the former chair of the American Bar Association’s family law section.
In fact, the total number of prenuptial agreements in the United States has skyrocketed in the last two decades.
Because people in the 21st-century are getting married later in life, on average, than earlier generations married, those who are entering a marriage today usually have more to protect than those who married two or three generations ago.
Second and subsequent marriages are also much more common now. Those who enter second and subsequent marriages tend to approach a marriage with more thoughtfulness and planning.
IS A PRENUPTIAL AGREEMENT A “SMART” MOVE?
Of course, not everyone brings assets into a marriage. Many bring debt, particularly student loan debt, which now amounts to more than a trillion dollars in the United States.
Prenups can safeguard assets like retirement accounts, real estate, and investments, and prenups can also protect a bride or a groom from a partner’s student loan debt or credit card debt.
Young people today grew up in a world with a fifty percent divorce rate, so – for the most part – they are careful about not rushing into marriage. They believe that signing a prenuptial agreement is a reasonable step and is not a “big deal” at all.
HOW CAN A FAMILY LAWYER HELP?
After the wedding, a prenuptial agreement may be rewritten, modified, or even voided completely if both partners agree. Married couples may also want to consider creating their own postnuptial agreement, which serves the same function as a prenuptial agreement.
In southern California, an experienced Oceanside family law attorney can help you and your partner draft the prenuptial or postnuptial agreement that is right for both of you.
Couples who are about to marry should also have some type of premarital counseling – not because you need to fix anything, but because good counseling offers real-world insights for creating and maintaining a strong, stable, and lasting marriage.
Private and public counseling resources are abundant here in southern California.
WHAT HAPPENS IF A PRENUP IS CHALLENGED IN A DIVORCE?
When a prenuptial agreement is challenged in a divorce proceeding, a judge will decide if the agreement is unfair. The court will ask:
1. When the prenuptial agreement was signed, was fraud or duress involved?
2. Did both prospective partners completely disclose their finances prior to signing?
3. Do the terms of the prenuptial agreement violate any California laws?
ARE ALL PRENUPTIAL AGREEMENTS ENFORCEABLE?
Amendments to the California Uniform Premarital Agreement Act of 1986 provide that prenuptial agreements signed in this state after 2002 are enforceable only if the spouses had:
1. full information about one another’s property and finances before signing
2. at least seven days to sign after receiving the agreement
3. different lawyers, unless one spouse has signed a separate document expressly and voluntarily waiving the right to his or her own lawyer
When a prenuptial agreement is challenged by either partner in a California divorce proceeding, the court may conduct a comprehensive investigation.
It’s easy to understand why prenuptial agreements can be an awkward topic for discussion. It’s a document that is prepared in case a marriage ends in divorce. But if both parties agree, a prenuptial or postnuptial agreement is a genuinely good idea.
ARE PRENUPS APPROPRIATE FOR SAME-SEX COUPLES?
If you are a same-sex couple, you should consider creating a prenuptial agreement, discuss it with an experienced family attorney, and have that attorney draft the agreement on your behalf.
Without a “prenup,” same-sex marriage partners may have little or no legal protection if a divorce happens, and the courts in California have little in the way of precedent to guide them. A prenuptial agreement provides that guidance.
And since the Obergefell decision by the United States Supreme Court in 2015, if a same-sex couple creates a prenuptial agreement, are married in another state, and later move to California, the agreement will remain valid.
WHY IS AN ATTORNEY’S HELP IMPERATIVE?
When you and your spouse or prospective spouse decide to create a postnuptial or prenuptial agreement, you should avoid blank, preprinted or downloadable agreement forms.
Instead, let a family lawyer draft the unique and singular agreement that is right for you, your partner, and your particular individual needs.
A good family lawyer can also review current prenuptial agreements to ensure that they are legal, fair, and appropriate for both spouses. If your current prenuptial or postnuptial agreement needs to be modified, a family lawyer can help.
A prenuptial agreement can protect you, your partner, and your assets. To learn more, arrange to speak with an experienced Oceanside family law attorney.