2016: What is a Prenuptial Agreement and how can it Help or Hurt My Marriage in San Diego?

A prenuptial agreement, sometimes also called a premarital agreement, clearly identifies what each party is coming into the marriage with. Both potential spouses will disclose the separate property they respectively own, and come to an agreement on the other party’s rights to it in the event that the marriage ends in divorce. It is possible to enter into a similar agreement even after a marriage has occurred, and in these cases the document is called a postnuptial agreement.

WHAT ARE THE BENEFITS TO A PRENUPTIAL OR POST NUPTIAL AGREEMENT?

There are a lot of benefits to drafting a prenuptial agreement prior to your wedding. One of those that many couples seem to value above most others is the financial unambiguity that these agreements allow them to enter into marriage with. A valid prenuptial agreement often also reduces the financial contention that comes along with a divorce. Absent an agreement to the contrary, in San Diego all property is divided according to community properly laws. This often results in an unsatisfactory judgment for at least one party. An often overlooked element of prenuptial agreements is that they can also indicate how debt is divided. A valid agreement can help to protect each spouse from being held liable for the other’s debts.

These agreements can also ensure that separate property of one party is left to who that party wishes, instead of how community property dictates it would be in the event that the marriage ends in death. This is often very helpful in the event that there is an item of personal or emotional significance in a family, that should be passed down to someone in particular instead of how community property may dictate.

For potential spouses who may have not yet finished their education, a valid agreement can indicate which party will be responsible for educational expenses, including student loan debt. The agreement can also set out how things like taxes, credit card debts, savings accounts and household expenses will be handled. One very important and often useful thing to include is that, in an event of a dispute, that the parties will utilize a neutral third party for mediation.

Simply, making a plan, and an agreement that satisfies both parties prior to marriage allows for a smoother process should the marriage end in the event of either divorce or death.

HOW SHOULD WE GO ABOUT OBTAINING A PRENUPTIAL AGREEMENT?

The first thing to do is find a well qualified San Diego family law attorney to advise you on the matter. Often times sitting down with your potential spouse and coming up with an idea of what you’d both be happy with in an agreement can reduce legal fees and expedite the process. It’s important to also decide with your spouse whether or not you’ll be retaining one attorney or two. The benefit to retaining your own attorney for assistance with a prenuptial agreement is that it’s more likely you will understand the rights you’re entitled to and may possibly be waiving. Another benefit to retaining separate attorneys is that should either party contest the validity of the agreement if the marriage ends, a Judge is more likely to find that the parties were fully informed and the agreement is valid if each had their own competent counsel.

WHAT MAKES A VALID PRENUPTIAL AGREEMENT?

A valid prenuptial agreement must be written, signed, clear and fair. The Court will consider whether each party was represented by legal counsel, had an opportunity to review the agreement free of time constraints or duress, whether each party fully disclosed finances and property and whether each party voluntarily entered into the agreement. A common reason these agreements are found invalid is for being overly one sided or unfair to one party. The agreement can absolutely provide no allurement or enticement for divorce. Often prenuptial agreements that provide for property or assets to clearly benefit one spouse over another will be seen to not only be unfair, but to entice the dissolution of the marriage. A prenuptial agreement shouldn’t include tasks or responsibilities of anyone other than the parties entering into it. It should also not include any decisions regarding children. This includes anything from having children, to child custody and visitation in the event of divorce, or child support.

No one enters into marriage expecting it to end. However, putting up with a bit of discomfort in the beginning can easily set you up for a smoother transition should something go wrong and should your marriage unexpectedly end in the future. The procedure for drafting and executing a valid prenuptial agreement can be uncomfortable, awkward and complicated.

AN EXPERIENCED LOCAL SAN DIEGO FAMILY LAW FIRM CAN ASSIST YOU WITH THE PROCESS OF DRAFTING A VALID PRENUPTIAL AGREEMENT AS WELL AS OTHER ISSUES

Please feel free to call the law office of Doppelt & Forney, APLC to meet with an attorney who can explain not only these rights and procedures, but also many others.

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