Prenuptial And Partnership Agreement Information
Individuals who have chosen to marry later in life, people who have amassed significant wealth, those with children, and people entering into second marriages, can often benefit from a thoughtfully developed prenuptial agreement.
For those with children from a previous relationship, you can provide directives for asset division in the event of your death, or protect some assets for your children in the event of a divorce. California is a community property state. If you are involved in a divorce, everything considered marital property will be subject to asset division. A prenuptial agreement can alter the effect of the California community property law.
A prenuptial agreement can offer stability, predictability and protection for your assets against the possibility of a divorce. One can rest a little easier knowing their finances and assets subject to divorce allocation have been addressed in a prenuptial agreement.
What Are The Common Reasons For A Prenuptial Agreement?
Protection of property. This includes waiving community property rights, including real property, businesses, intellectual property and retirement plans.
Providing (or not) for spousal support (alimony). Parties to a prenuptial agreement can opt to waive spousal support or set a fixed amount upon divorce.
Preservation of separate property and debt. To make certain what was yours is always yours. Making certain what is owed is always the debt of the incurring spouse.
What Can Go Into A Prenuptial Agreement?
Under the Family Code, you can include the following:
- The rights and obligations of each of the parties in any of the property of either or both whenever and wherever acquired or located.
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
- The disposition of property upon separation, marital dissolution, annulment, death, or the occurrence or nonoccurrence of any other event.
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
- The ownership rights in and disposition of the death benefit from a life insurance policy.
- The choice of law governing the construction of the agreement.
- Any other matter, including personal rights and obligations not in violation of public policy or a statute imposing a criminal penalty.
What May Not Go Into A Prenuptial Agreement?
Limitations on child support, child custody and religion, promotion of divorce or damages for cheating.
What Is The Deadline For Entering Into A Prenup?
There is generally a seven-day calendar rule that the prenuptial agreement should be presented to the party who did not draft the agreement seven days before marriage. While this might not apply in all cases, prenuptial agreements should be executed well before a marriage takes place.
What Are Postnuptial Agreements?
A postnuptial agreement is an agreement entered into after a marriage has taken place, and is, in form, much like a prenuptial agreement. After marriage, however, the parties owe in a higher duty to each other (fiduciary duties) and the mechanics of entering into a postnuptial agreement can be more complicated than a prenuptial agreement.
Why Would Spouses Want In A Postnuptial Agreement?
For all of the same reasons a spouse may have wanted a prenuptial agreement: protection of property, setting or waiving spousal support before a divorce or preserving separate property and/or debt. Marriage imposes strict fiduciary requirements on spouses. Postnuptial agreements will be more carefully scrutinized and easily challenged then prenuptial agreements.
It is of utmost importance that you hire a San Francisco attorney to prepare a postnuptial agreement for you. Matters commonly addressed by lawyers in postnuptial agreements are business valuations, division of retirement accounts, division of pension plans, division of investment accounts and real property valuation and division.