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What is a prenuptial agreement?


Engaged couples should consider the unpleasant and unromantic but prudent step of entering a contract before marriage that will govern property division and resolve other legal and financial issues if they ever divorce. California family law governs these prenuptial agreements.

Prenuptial agreements govern how marital property and debts are divided if there is a divorce. These usually address assets that each party brings into the marriage, which usually remain with the original owner, and those acquired during marriage. Additionally, a prenup can address debt that is accrued, such as college loans, and whether it will be divided between the spouses.

Prenups allow a party to waive or alter inheritance rights if it does not negatively affect any minor children. Otherwise, a court will award a spouse half of the community property of the spouse who dies regardless of the contents of a will.

Prenuptial agreements can address many issues but cannot govern custody or child support which are decided by courts based upon the best interests of the child. However, the agreement can have one party pay support, for expenses such as education, that exceed a court order.

Under state law, a prenup is invalid if a spouse gives consent based upon fraud, coercion or mistake. It cannot result from seriously unequal bargaining power. A court may reject all or part of an agreement that it finds unfair or where one spouse benefits much more than the other spouse.

Each party should have their own attorney or waive this right in writing before signing the prenup. They must be transparent about their finances and property and share this information. Parties must receive full disclosure of the agreement's terms, rights and conditions. A spouse should wait at least seven days after receiving this agreement before signing it.

Prenuptial agreements may identify and protect valuable assets. This is important in a community property state such as California where a spouse usually keeps property that they brought into the marriage and the couple must equally divide property and debt accrued during their marriage.

These agreements help resolve complex issues in a less contentious atmosphere. This can expedite divorce proceedings and be more cost-effective.

An attorney can help an engaged person consider options and protect their rights. They can help assure that a prenup is equitable and complies with California law.

Source: San Fernando Valley Bar Association, "Prenup California law: What you need to know," Accessed Oct. 31, 2017

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