Expert Riverside County Pre-Marital Agreement Attorneys
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Who Should Consider a Prenup?
Premarital agreements, commonly called prenuptial agreements or prenups,
are becoming commonplace for good reasons. They once were disfavored by
California Courts as promoting divorce and so the public policy was to
view them with suspicion.
Today that perspective is reversed: Prenups are seen as promotive of marriage
because many people will not get married without one. Here is a Blog I
recently wrote that may convince you that
even if you don't wind up signing a prenup, meeting with a family law
specialist will pay dividends in terms of avoiding critical mistakes during
More and more people wish to remarry or marry later in life when they already
have children, or property and assets to responsibly manage and protect.
Some are concerned about liability for credit cards and foreclosure or
other debts and property from prior relationships and don't want to
impose them upon their new mate. Many have been burned by the divorce
process, or watched their parents or others they know have horrific divorce
experiences. Others want a simpler and less expensive road-map for resolving
differences if a relationship fails rather than the chaos and expense
that litigation engenders. Still other people recognize that planning
for the future at whatever age provides freedom and flexibility, and even
report that they stay together because they have the security of a clear
understanding of their rights and obligations.
As any experienced family lawyer will tell you, most clients had no clue
of what the legal effect of almost everything that happened after their
marriage would be. Obligations and outcomes arose which neither spouse
ever intended. It then becomes a scramble to see who is advantaged and
who is disadvantaged from a default set of circumstances. Ironically,
the law of divorce imposes all kinds of consequences on people as though
one knew them all along - when, of course, no one considers these matters
until a crisis arises. This is a recipe for disaster.
While no one enters a marriage expecting it to end, planning for the future
can have a number of important benefits, and also serious consequences,
to one or both parties, and for children. It may be an expression of maturity
and independence to predetermine certain rights and responsibilities prior
to marriage or becoming domestic partners.
To consider a prenuptial agreement in a vacuum as though parties should
in all cases waive or limit future rights and protections, and obligations,
is not the appropriate answer. Whatever one decides, both parties need
to understand and consider deeply many different possibilities and outcomes.
The unexpected is a part of life, and so there is an element of gambling
to premarital agreements. Having a solid, legal description of what will
happen in the event of divorce or the loss of a spouse can serve to protect
you and your children's future. Knowing your alternatives and what
is in your best interests requires the skilled and independent advice
of a competent prenuptial attorney!
California Premarital Agreements
In 1985 California adopted the Uniform Premarital Agreement Act (UPAA),
and further amendments were made effective in 1994. Major amendments were
last added in 2001, and their effect and interpretation is still winding
their way through the appellate courts. Today it is lawful to create binding
premarital agreements that will be enforceable by California Family Courts
covering almost every topic other than child support or
child custody. Because of the state's interest in protecting children and maintaining
their best interests
(Family Code section 3011), parents cannot divest courts of jurisdiction to make those determinations
where parties cannot later agree. Similarly, because the right of a child
to be supported belongs to the child, parents cannot bargain that right
away or limit court jurisdiction to make independent judgments in parental
disputes, custodial disputes, or disputes where the state has a reimbursement
interest (for instance welfare reimbursement). Nonetheless, parents can
express their non-binding wishes in such agreements and courts do care
about the parties' intentions
before things began to become challenging. This is particularly important for
certain couples, including those where only one of the parties is a legal parent.
Premarital agreements can effectively waive or limit
Family Code section 1612 expressly permits such waivers. However, they are extremely tricky and
support waivers may not be enforceable if the statutory conditions set forth in
Family Code section 1615 are not fully satisfied.
Please review our Desert Divorce and Family Law Blog article on this subject.
Parties can also agree to change or protect the character of property
already owned by them, or acquired during marriage in either person's
name including all obligations relating thereto; they can predetermine
how property will be disposed of upon separation, dissolution, death,
or "the occurrence or nonoccurence of any other event"; they
can reach agreements about wills or trusts or other arrangements to carry
out their agreement; they can limited or expand ownership rights in and
the disposition of death benefits contained in life insurance policies;
they can decide which State's laws will govern construction of agreement
terms; and they can determine any other matter in advance so long as their
wishes do not violate a civil or criminal statute or penalty.
You Should Only Consult with an Attorney Who is Expert at Drafting Premarital
Agreements! Thurman Arnold has drafted, negotiated, and revised many scores of them.
However, for a premarital agreement to be enforceable a number of important
formalities and conditions must be satisfied. This is true whether or
not the parties intend to waive or limit spousal support or merely to
deal with potential property issues. For instance, if the person against
whom enforcement is later sought had less than seven days between being
presented with the agreement and being advised to seek independent legal
advice and the signing of it (typically where the wedding is about to
occur), then the agreement may be unenforceable as against that party.
The adversely affected party must have been advised by independent counsel
who, typically, themselves signs the agreement OR they must sign an independent
writing that states they were fully informed of the terms and basic effect
of the agreement as well as the rights they were giving up before signing
It is almost certain that a premarital agreement prepared without the involvement
of a lawyer
for each party is not going to be effective even to protect property, and it is guaranteed
that a waiver of spousal support will not be enforceable later unless
the party who later seeks support was actually represented at the time
the agreement was signed by an independent attorney (even then the waiver
will not be enforced if the waiver is deemed "unconscionable"
at the time it is asserted).
Parties contemplating marriage or becoming registered domestic partners
ought consider mediating the terms of their premarital agreement. This
service is available through Desert Family Mediation Services in Palm Springs.
Thurman W. Arnold, III is the only Fellow of the Academy of Matrimonial
Lawyers in the Coachella Valley.
We serve marriage and divorce clients particularly within the desert cities of
Palm Springs, Indian Wells, La Quinta, Rancho Mirage, Palm Desert, Joshua
Tree, Cathedral City, and Indio!