What Is a Prenuptial Agreement, and Do You Need One?

A prenuptial agreement (“prenup”) is a legally binding agreement that sets out how debts and assets, including spousal support, will be divided in the event of a divorce. There can be conditions and contingencies to the prenup, such as the length of the marriage.

Who Needs a Prenuptial Agreement?

While there are very few couples who could not benefit from a prenuptial agreement in some way – even bringing up the topic can open valuable lines of communication – it is especially important for couples where:

• One or both of the partners has children or other dependents
• One or both of the partners owns a business
• One or both of the partners is bringing family property into the marriage
• One or both of the partners wants to direct their inheritance
• There is a significant difference in debt
• There is a significant difference in assets or earning potential

The primary intent of a prenuptial agreement is to protect assets or property brought into the marriage, as well as assets acquired during the marriage. It can also protect a spouse who has left the workforce to raise children.

Another very good reason to consider a prenup is that the process of dividing assets and debts can be lengthy, unpleasant, and expensive, especially when the divorce is contentious. If couples can agree on what they consider fair when things are good between them, it can save time, pain, and cash if a divorce should become necessary down the road.

What a Prenuptial Agreement Can’t Do

A prenup can’t destroy one spouse financially, even if the couple signs an agreement to do so. A court can and will throw out any prenuptial agreement that is considered “unconscionable.” The law does not define that term strictly; examples are that a spouse who would be otherwise bereft will probably not be allowed to waive financial support, or a couple with six marital residences probably won’t be allowed to assign all of them to one spouse if it leaves the other one homeless.

Other considerations in declaring a prenuptial agreement “unconscionable” include the spouses’ relative education and independence. A prenup drawn up by an educated, sophisticated partner that is distinctly disadvantageous to a less-than-literate partner will likely be examined thoroughly, for instance.

A prenup also can’t control anything related to custody of or support for a minor child. California courts prioritize the best interest of the minor child or children, and therefore consider it their prerogative to make these decisions. Neither partner can waive child support in a prenup, and partners cannot use custody as a bargaining chip. If the child is an independent adult, they are out of the court’s jurisdiction, so stipulations related to college tuition or allowances for the adult child may be included in a prenuptial agreement.

A prenup also can’t control anything related to custody of or support for a minor child.

Laws Around Prenuptial Agreements

California adopted the Uniform Prenuptial Agreement Act in 1988, which was intended to ensure that requirements for prenuptial agreements were consistent across states and that a prenup entered into in one state would be valid if the couple were to divorce in another state.

Some stipulations of the UPAA are:

• Both parties must be represented by independent legal counsel, unless one party waives that right in writing
• Both partners must make a full disclosure of their assets, debts, and other financial information
• If either or both partners are not literate or fluent in English, the prenup must be translated into a language they can read
• One partner may not hold unequal power over the other, or the prenup cannot significantly favor one partner
• Both parties must have seven days to review the prenuptial agreement before signing it
• The prenup does not become valid until the marriage is official

In addition, California law states that conditions regarding fault cannot be included in a prenuptial agreement, which means that adultery, abuse, neglect, and so on cannot be considered. No part of a prenuptial agreement can violate any other existing law, of course.

Prenuptial Agreements Are Complicated but Sometimes Crucial

As you have likely gathered, there’s a lot that goes into creating a tight but fair prenuptial agreement because there’s a lot on the line – such as your entire financial future! We hope that all marriages truly do last until death do they part, but as attorneys who work in family law, we also know that this isn’t always going to be the case.

If you would like to know more about how prenups work and whether you and your future spouse are good candidates for one, reach out to us at WGS Law to schedule a contactless virtual consultation over Zoom. We can walk you through the process and evaluate your questions and concerns. The best prenup is one that you’ll never need, and that’s what we want to help you put together. Contact us today!