California Prenuptial Agreements: To Discuss or Not to Discuss- the Elephant in the Room

As a family law attorney, I get asked this question all the time: Do you think a Prenuptial Agreement is a good idea? My answer is always a definite YES. With the California divorce rate at a WHOPPING 75% planning for the “What if” is important. Let’s face it, no one wants California Law to govern their personal finances, personal lives, and determine who gets what of your hard-earned money any more than we enjoy the IRS interfering with our finances. So why not take your personal life out of the state's hands and make those determinations for yourself?

I always tell my clients, it is best to plan for your future and determine the characterization of your assets while you are level-headed and on good terms with your significant other because as any divorce attorneys know, your sense of rationalization is gone once the divorce papers are filed and most parties are just looking to win causing themselves to incur legal expenses and be buried in debt. So, let’s take a look at the rules of California Law pertaining to Prenuptial Agreements:

1. Prenuptial Agreements are governed by FAMILY.CODE SECTION 1610-1617 which provides that:

a. Both spouses must receive complete information about the other spouse’s property and finances prior to signing the agreement b. The signing spouse (not the drafter) must have had at least 7 days between first receiving the agreement and signing it (to allow enough time to have an attorney review the agreement), and c. The party was represented by a separate attorney when signing the agreement, unless the spouse: i. received full information in writing about the terms and basic effect of the agreement, including any rights and obligations the agreement would nullify, and ii. signed a separate document acknowledging receipt of such information, identifying the person who provided the information, and expressly waiving the right to an attorney.

The best way to assure that the prenuptial agreement will be enforced is to have both parties retain independent counsel to sign off on the prenuptial agreement.

Parties can pre-determine the characteristic of their:

Retirement Funds, Real Properties, Vehicles, Stocks, Bonds and other Assets. They can also predetermine the characteristics of debts and liabilities. Essentially, a prenuptial agreement allows you to have control over your finances.

A prenuptial agreement, however, cannot alter child support. Both parents must provide child support for their little ones, and it can at, no time, be waived.

Child Support is also modifiable, if the parties enter into an agreement over child support it can always be changed to the date the child turns 18 (if out of high school), 19 if in high school.

I know it is a difficult subject to discuss but it must be done. Plan ahead. You would plan ahead for retirement and consult with a financial advisor so why not plan ahead to secure your interest in case of a divorce.

To Discuss or Not to Discuss a California Prenuptial Agreement

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