Whether you’re engaged to be married or tied the knot years ago, it’s never too late to think about how your assets should be divided if your marriage one day comes to an end. By creating a prenuptial or postnuptial agreement, you and your spouse can reduce the need to fight over property if you ever get divorced. These agreements allow you to spare yourself a lot of the emotional and financial cost that usually comes with divorce.
At Kaspar & Lugay, LLP, we help San Diego-area couples craft prenuptial and postnuptial agreements that reflect their true wishes and are drafted so that they are accepted by California courts. Our attorneys, who also have deep backgrounds in finance, can assist you in thinking holistically about how you want your assets and debts handled, and then memorialize your desires accurately on paper. marital agreements.
If you already have a prenup or postnup, our attorneys can help you deal with it when it comes time for divorce. Specifically, we can help you modify, enforce or challenge these marital contracts in San Diego courts.
What is a Prenuptial Agreement?
A prenup is a formal, written agreement (a contract) explaining how a couple’s property should be divided should they ever get divorced. It is called prenuptial agreement because it is drafted and signed before marriage, unlike a postnuptial agreement, which is drafted and signed after marriage (we discuss postnups below).
Requirements to Create a Valid Prenuptial Agreement
California’s Uniform Premarital Agreements Act (UPAA) is very specific about what it takes to create a legally enforceable prenup. Some of the main requirements are:
- The prenup must be written; verbal agreements are not enforceable
- The contract cannot contain unlawful terms
- Each spouse must provide a full and fair disclosure of their assets and debts
- Must be voluntarily signed by both spouses
- Must be signed by a notary
- To give the spouse adequate time to contemplate the contract, at least seven days must pass between the time the final agreement is presented and the time of signing.
Can We Write Our Own Prenup?
California courts are extremely skeptical of prenuptial agreements that were not written by legal counsel. The law does not technically require attorneys to draft them, but in practice courts almost never enforce prenups that are written by the spouses. The main reason for this hesitancy by courts is the fact that prenups are contracts about a critical subject: the financial health of a couple and possibly their children. It is viewed as too risky to allow people to enter such important contracts without the advice of counsel. It’s too easy for one spouse to take advantage of the other unless they have lawyers.
What Can Be Included in a Prenup?
Your prenuptial agreement can and should encompass all of your property. Think of property as broadly as you can. It includes things like real estate, of course, but it’s much more than that. Property also means business assets, checking accounts, investments and retirement accounts, annuities, and more. Property also includes credit card debt, mortgage debt and other types of debt.
There are several things that your prenup cannot include. Most importantly, a prenup cannot cover child custody or child support. Spousal support cannot be included, either. Aside from those specific items, most things can be covered by a prenup so long as they are related to property and are not unfair or deceptive in nature.
What Is a Postnuptial Agreement?
A postnuptial agreement is essentially the same as a prenup, except it is written and signed after the couple gets married. Postnups can be created anytime after marriage, whether it’s a month later or 30 years later.
The biggest difference between prenups and postnups is how they are viewed by courts. Courts presume that prenuptial agreements are valid, but they presume postnups are invalid. This is because, historically, postnups were thought to encourage divorce; they could be written after the couple starts having problems, and give them an “easy out.”
To overcome the presumption of invalidity, both parties must be represented by their own attorneys. And, the postnup must meet all the same requirements as a prenup, such as being signed and notarized, fair to both parties, and written only after both spouses fully disclose their assets and debts. Finally, like a prenup, you cannot use a postnup to cover child support, child custody, or spousal support.
Reasons Why You Might Want a Prenuptial or Postnuptial Agreement
These marital agreements can be useful for a variety of reasons, but two are particularly noteworthy.
First, the allow you to sidestep California’s community property rules. Without a prenup or postnup, all property that is considered community property is split down the middle. That may not be the outcome you desire. A prenup or postnup allows you to dictate how your property is divided.
Second, San Diego business owners can benefit greatly from having a prenuptial or postnuptial agreement. You can use these documents to specify what should happen to the company if you get divorced or an owner dies. You can also use them to work out the complicated finances, debts and assets many business owners must deal with in divorce.
Get Advice from Our San Diego Prenuptial and Postnuptial Agreement Lawyers
Are you wondering if a prenup or postnup is right for you? The attorneys at the San Diego office of Kaspar & Lugay, LLP can advise you and draft the documents if you decide to go forward. Or, if you already have an agreement and need to enforce or challenge it during divorce, we handle that too.
To get started, please call XXX-XXX-XXXX or complete our online contact form and an attorney will reach out to you.