Written by attorney Galen Gentry

A Recent Court Case Makes Prenuptial Agreements Likely To Be Enforced If Done Right

There is a very good book by New York family law attorney Arlene Dubin called Prenups For Those In Love. It is light hearted, an easy read, and it discusses how to broach the subject of prenuptial agreements (in California lawyers and judges call a prenuptial agreement a premarital agreement, but they’re the same thing), what a prenup can and can’t do and when and why it makes sense to have one. Each state has it’s own laws and they vary a bit. This post focuses on prenups for California couples.

What is a prenuptial agreement? As noted in my earlier posta prenuptial agreement is an agreement ( a legal contract) between people who intend to marry. The prenuptial agreement sorts out their financial matters such as property division and financial supportv in advance in case of a future separation, a divorce or death. The agreement supplants the law that otherwise would apply which in California is found in the Family Law Code.

Who needs a prenuptial agreement? Younger couples can use a prenup to protect businesses, professional practices, careers, inheritances and credit. For more information on the steps business owners should take to protect their interest in a business read my blog post by clicking here. Older couples use prenuptial agreements for the reasons above and also to protect the funds they’ve built up for retirement and to protect their assets for their children from prior marriages.

What can you do with a prenup? Family Code Section1612 sets out what can and cannot be done with the agreement. Any financial issue can be dealt with in a premarital agreement.

What can’t you do with a prenup? Issues relating to children, including child support and custody are not permitted. Nor is one allowed to contract about obligations during the marriage, such as household chores, frequency of sexual relations, or penalties for adultery.

Can you “get rid of" your obligation to pay spousal support with a prenup? Probably. California has special provisions regarding spousal support in prenuptial agreements. Provisions regarding spousal support will likely be enforced if person whose receipt of spousal support is limited or waived had independent counsel (was represented by an attorney) before entering into the agreement. But, the law also states provisions regarding spousal support will not be enforced if they are unconscionable at the time of enforcement. This means that it is not possible to determine in advance with absolute certainty whether a spousal support provision will be enforceable when you separate because your financial circumstances can change at over time.

A recent court case reflects the courts’ current trend to uphold prenuptial agreements when the objecting party has competent legal representation and practical access to all relevant information concerning the other person’s finances – whether or not they took advantage of that opportunity. In the case, In Re Marriage of Hill and Dittmer , the court included selected portions of the prenup which was upheld as enforceable. The Hill case provided family law attorneys who draft premarital agreements a useful outline to follow when preparing them.

Prenuptial agreements make sense, but as we all know people aren’t machines. Discussing the subject can be tough. Some people feel that a prenup will set the marriage up for failure or that asking for one indicates a lack of trust. Prenups can and should be fair. Prenups are complicated. They require a family law attorney who knows the relevant laws and has experience drafting them. If you think you need one, you owe it to yourself to find out more about them.

Additional resources provided by the author

See links below for further information on prenuptial agreements and how business owners should use prenuptial agreements and buy-sell agreements to ensure their businesses are not destroyed by a divorce.

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