Prenuptial Agreements

January 31, 2024 | By Doppelt and Forney
Prenuptial Agreements

People generally enter into marriages with the mindset that they will stay married for the rest of their lives. They often are aware, though, that many marriages end in divorce and that divorces are frequently contentious, in part due to disagreements over how property and assets should be divided.

As such, it is prudent for people who are contemplating getting married to consider entering into prenuptial agreements that establish their financial rights and obligations. If you have assets you wish to protect or were approached by your fiancé regarding executing a prenuptial agreement, it is prudent to speak to an attorney as soon as possible to determine your options.

At Doppelt and Forney APLC our skilled San Diego lawyers have ample experience negotiating and drafting prenuptial agreements, and we can help you to protect your interests in a respectful and efficient manner. We regularly aid people with family law matters in San Diego and in other cities throughout the County.

Prenuptial Agreements in California

California is a community property state, which means that any property acquired during the course of the marriage is presumed to belong equally to both spouses and may be divided equally in a divorce. California law allows people to override the community property assumption and delineate certain rights and obligations via prenuptial agreements, though.

Certain factors must be met for marital agreements to be valid and enforceable. Specifically, they must be in writing and must be signed by a notary and by both parties. Further, each party must be given the document at least seven days before executing it, allowing them time to retain independent counsel. Finally, prenuptial agreements must be entered into voluntarily. In other words, parties cannot be defrauded or coerced into signing them.

Prenuptial agreements are essentially contracts that a couple enters into prior to marriage that are effective upon marriage. They differ from other contracts, though, in that the parties do not have to exchange any money or consideration for the agreement to be enforceable. If parties determine that they want to change the terms of a premarital agreement after they are married, they must do so via a written amendment. This is called a post nuptial agreement and higher standard than pre nuptial agreements due to the fiduciary standards when married.

Prenuptial agreements can be used to dictate rights with regard to jointly or individually owned property, what property will remain separate and what will be considered marital property, and how any marital property will be divided if a couple divorces.

Prenuptial agreements can also establish whether either party is entitled to alimony if the marriage ends. Finally, prenuptial agreements can include any other terms as long as they do not violate the law or public policy. There are limitations to what rights can be defined by prenuptial agreements, though. Specifically, they cannot be used to dictate the terms of child custody for any living or future children or whether either party may receive or be obligated to pay child support.

Disclosure Prior to Prenuptial Agreements

Pursuant to California law, parties must provide one another with a full, fair, and reasonable disclosure of their financial obligations prior to executing prenuptial agreements. In other words, each party must provide their prospective spouse with a list of any assets they own, including real estate, bank accounts, valuable art, investment funds, boats, and business interests.

They must also advise them of their debts, including any mortgages, credit card statements, and loan statements. It is prudent for parties to err on the side of being over-inclusive during disclosure to prevent potential issues in the future.

Enforcement of Prenuptial Agreements

Courts will not enforce prenuptial agreements that are invalid. In other words, if an agreement was not executed properly, it most likely will be deemed unenforceable. Courts will decline to enforce illegal provisions as well. A Court may also refuse to enforce a prenuptial agreement if it finds the agreement to be unconscionable or it determines that either spouse did not enter into the agreement voluntarily.

The Courts will examine numerous factors in determining whether a party executed a prenuptial agreement voluntarily, including whether the spouse contesting enforcement of the agreement was represented by independent counsel or executed a document stating that they fully understood their obligations and rights before entering into the agreement.

A Court may also look at how much time transpired between when the party received the agreement and when it was executed, whether the agreement was signed under duress or due to fraud or undue influence, and any other factor it deems relevant.

A Court can refuse to enforce a prenuptial agreement on the grounds that the party opposing enforcement was not provided with a reasonable disclosure of the other party’s assets and financial obligations and did not waive the right to the disclosure.

Marital Agreements and Estate Rights

Prenuptial and postnuptial agreements are not only used to define property and financial rights and obligations but can also be used to create a will or establish rights to an estate. Marital agreements are often used for this purpose when one or both parties entering into the agreement has children from an earlier relationship.

Pursuant to California law, prenuptial agreements can be used to waive the right to elective, intestate, or pretermitted shares, exempt or homestead property, or family allowance.

Consult a Skilled San Diego Family Law Attorney

Prenuptial agreements are practical tools that can help people protect their assets and avoid protracted litigation in the event that they divorce. If you are interested in entering into a prenuptial agreement or were approached by your future or current spouse about such a contract, it is smart to consult an attorney about your rights.

The skilled San Diego family law attorneys of Doppelt and Forney APLC are adept at handling the complex issues that often arise with marital agreements, and if you engage our services, we will work diligently to help you seek your desired outcome. We regularly help people with family law matters in San Diego and other cities in San Diego County. You can reach us at 800-769-4748 or through our online form to set up a consultation.