Do I need a prenuptial agreement?
It all depends on what goals you and your fiance have in mind. Prenuptial Agreements are governed by California Family Code §1611, which lays out the “Uniform Premarital Agreement Act.” Under the Code, the agreement must be in writing, signed by both parties.
Both parties should have an attorney. The agreement must be entered into voluntarily, and both parties should have a clear understanding of what the agreement says before signing it. Premarital agreements that “promote divorce” are unenforceable based upon public policy. (See Marriage of Dawley, (1976) 17 C3d 342, 346, 131 CR3.)
Public policy does allow for parties to include provisions pertaining to limitations on Spousal Support, so long as they are entered into voluntarily, and both parties are considered educated, intelligent people. (See Marriage of Pendleton & Fireman, (2000) 24 C4th 39.) According to Family Code §1612(c), the enforceability of Spousal Support waivers in a Prenuptial Agreement may also depend upon whether or not it would be “unconscionable” at the time the enforcement of the agreement is sought by one party against the other. (This means a means a divorce has been filed, and one party seeks to find a reason to “get out of” the agreement, because he/she does not want to uphold the agreement regarding “no Spousal Support.”).
The bottom line is, if you are thinking about having a prenuptial agreement, discuss this early and at least 6 months before the wedding date, to allow time for both parties to obtain the advice from a qualified attorney in this area.
Read on about divorce issues for busy people here.
Legally Barb is attorney Barbara E. McNamara, a Certified Family Law Specialist serving Orange County and nearby areas. For a consultation, reach her at 714-740-2542 or barb@LegallyBarb.com.
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