Prenuptial Agreement

Getting a Prenuptial Agreement in California?

Should You Get a Prenup Attorney?

There are two legal presumptions which apply to PreMarital Agreements in California which you should be aware of if you are thinking of having a PreMarital Agreement with your fiancée.  First, when both parties hire an attorney who assists them with the agreement and signs it the Court will presume that both represented parties had an understanding of what they signed.  This presumption is not absolute, but it is inadvisable to try to protect your property with an agreement that is not also signed by two attorneys, as this may invalidate the agreement.  Second, if the PreMarital Agreement is first presented less than 7 full days before it is signed by the other party the Court will presume that the agreement was the product of Undue Influence, and this can void the agreement.  These legal presumptions mean generally that you will need to have both parties represented by counsel and the agreement must be presented more than 7 days before the wedding, so there is time for it to be read, calmly considered, and signed.  If there are fewer than 8 – 10 days before the wedding you may be late in seeking this, so plan well in advance.

Why Do You Need a Prenuptial Agreement?

Some common reasons why parties seek a PreMarital Agreement are:

• Not your first marriage:  If you are remarrying, you may have a significant number of financial obligations, or you may have saved something over the years.  For example, you may have alimony or child support obligations from your previous marriage and/or you may have a house from your previous marriage.  A PreMarital Agreement can allow you to keep your new spouse free from any obligations associated with your previous marriage, as well as protect what you saved over the previous years.
• You or Your spouse has debt:  If your soon-to-be spouse has collected a large amount of debt, it is important to make sure that your marriage does not leave you with outstanding financial obligations.  Creditors can generally attach community property assets to pay what they are owed, so you may want to clearly define what you bring into the marriage as your separate property (or separate debt) to avoid having creditors seize separate property.
• You have accrued substantial savings:  If you have more financial assets than your future spouse, a PreNuptial Agreement can help protect your assets in the event of a divorce.  A PreMarital Agreement can also serve as a written statement that your soon to be spouse is marrying you, and not marrying your money.
• You may have complicated finances:  Sometimes one or both parties will own and operate a business, and they want to be certain that if there is a divorce they will retain ownership and control of their businesses.  Complicated finances can mean that advance planning is required.

Reduce Future Litigation

PreNuptial Agreements are often presented as a cynical or selfish action, but making it clear in advance how many matters will be handled in the event of a divorce can save both parties both time and money spent arguing in Court. Reducing any future litigation is a benefit to both parties. At the Law Offices of John H. Perrott we can work with you and your future partner to draft a PreMarital Agreement that is tailored to your unique relationship and needs.