Prenuptial agreements are contracts you can use to designate which assets or income will belong to the former spouse in the case of a divorce.
Prenuptial agreements are executed before the couple is actually married and are interpreted under the principles of contract law. The California Family Code provides for detailed requirements in forming prenuptial agreements.
In order for a prenuptial agreement to be valid, there must be full disclosure of all income, assets, and liabilities.
Furthermore, both parties must enter the agreement voluntarily. Courts are fact intensive in their evaluation of prenuptial agreements and there are many possibilities as to how a courtroom will interpret certain provisions of an agreement.
California Family Code Section 1615 enumerates the factors that are considered in determining whether a prenuptial agreement was entered into voluntarily. Such factors include:
(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
(5) Any other factors the court deems relevant.
The California legislature provides that the payment of child support is not to be included in the drafting of any prenuptial deals, and states that child support will not be “adversely affected” by a premarital agreement.
The California Family Code also lists the required elements for a valid prenuptial agreement. Such agreements will be deemed invalid if these required elements are not met. Therefore, it is of great importance that prenuptial agreements be drafted with close attention.
If you have significant assets or income, a prenuptial arrangement will be an effective strategy to shield yourself and any children you may have prior to the marriage. It is wise to speak with a skilled family attorney to review your particular situation.
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