Prenuptial and Postnuptial Agreements
A prenuptial agreement (also called a pre-marital agreement or a “prenup”) is a legally binding article crafted and decided upon by two parties before their marriage, which outlines division of property and other financial concerns in the case of a divorce. Prenups go into effect once the couple is officially married. A postnuptial agreement is, for all intents and purposes, identical, with the exception that it is created after the pair has already been married. As such, it tends to be useful in situations where either party’s financial situation may have changed.
It is important to understand what prenuptial/postnuptial agreements can and cannot do. For most, the primary concern is to negate the fact that, under California law, any financial interests, property, and debt obtained during a marriage (and often, some of what was obtained before) is considered “community property,” essentially owned by both individuals. In other words, anything acquired during marriage, as well as any debt you incur, also belongs equally to your spouse. As such, these agreements are entirely concerned with material/financial assets. They can outline division of property, ensure that assets remain separate (even during the marriage), establish, waive, or restrict spousal support, and even determine what may be done with the house, investments, 401k plans, or the family pet.
Prenuptial and postnuptial agreements cannot include conditions that go against California law, are considered “unfair,” or negatively affect any children involved in the relationship—for instance; neither spouse can waive or restrict child support as a part of the agreement. Prenuptial agreements also cannot include provisions that punish an individual for infidelity or marital misconduct. They are purely concerned with material and financial assets. Within these confines, couples have quite a bit of freedom in determining the terms of the agreement.
There are a myriad benefits to signing a prenuptial/postnuptial agreement, including avoiding emotionally and financially damaging litigation, shortening the divorce process, and sidestepping unnecessary conflict. That said, there are a slew of tiring legal and financial complexities involved in designing and signing one, as well as factors that individuals inexperienced with the divorce process may be incapable of foreseeing, such as adequate disclosure, proper notice and timing issues. As such, it’s always best to seek the advice of a skilled lawyer and have them help you with the process.
At the Law Offices of Glenn R. Wilson (FamilyLawFresno.com) we are experienced in drafting both prenuptial and postnuptial agreements such that we can help you arrive at the best arrangement to meet your needs.
By Connor Douglas Johnson