Prenuptial agreements can be a touchy subject. However, just like an insurance policy, a prenup can help to protect against the unforeseen.
It cannot cover everything, but it can significantly limit the problems that arise later on in the event of a divorce.
In most divorces, there are four primary areas of dispute:
- Property division
- Financial support such as child or spousal support (or alimony)
- Child custody issues
- Attorney’s fees
Most of these areas can be predetermined by a prenup.
A prenup can have almost any provision so long as the parties agree, but there are limitations. They can’t violate public policies or attempt to do something illegal. As well, a prenup cannot contain provisions regarding children, since nobody can pre-determine what is in the best interest of children at some unknown time in the future, whether that is a parenting schedule or an appropriate amount of child support. Thus, divorcing couples who have a prenup but also have children may still find themselves litigating those issues in court if they cannot agree.
Infidelity clauses are also problematic, as they require a court to determine whether infidelity or adultery has occurred. This then creates some notion of “fault” in a “no-fault divorce” state like California. Prenups also should not have terms that encourage parties to get a divorce. This usually takes the form of a provision where one party would receive substantial funds or assets in the event of a divorce, far more than what the law would require.
Absent these offenders, prenups can include almost anything, including terms about pre-marriage property or financial interests, alimony, debts, and attorney’s fees. But, couples getting ready for the big day shouldn’t wait until the last minute. California law requires that, absent extremely limited circumstances, parties must each have their own attorneys review and advise them before signing. Further, at least seven days must pass between when a party receives a final draft of the agreement and when it is signed. A prenup must also reflect that each party completed full financial disclosures to one another before signing. Putting together an enforceable prenuptial agreement from start to finish is often a months-long process, which means anyone interested in getting one should ensure they have an experienced family law attorney assisting them early on.
