Everything You Ever Need to Know About Prenups is an article I wrote that appears in Legal Ink Magazine. Check it out here!
Tip #1: DO NOT RUSH A PRENUP
I mean it. I get calls from clients ALL THE TIME (i just got 6 calls last week), and it goes something like this: “My fiance just gave me a prenup, and I want to make changes. Our wedding is this weekend – please help!” Sorry!! It’s too late! End of call.
(Then they call around to find another lawyer who’ll gladly take their money to draft an unenforceable prenup).
Make sure you set aside enough time to draft, negotiate and edit a prenup. (Appointment with lawyer should be set at least 6 months prior to your wedding date). Getting your prenup done takes priority over the cake, the dress, and the venue. Leave yourself enough time – make it THE To-Do before your I Do!
These clients are never happy with me when I tell them it’s too late. Truth is, if you are the out-spouse (usually the one being presented with the prenup), it’s awesome news! It means the prenup is no good – in which case, go ahead and sign it. Then, when your marriage falls apart, just pull out the dusty thing, along with carefully documented calendar dates, and challenge the hell out of it. (You still need money to hire a lawyer, though).
Tip #2: AFTER THE PRENUP IS FINALIZED, WAIT IT OUT BEFORE SIGNING
California Family Code section 1615 (c)(2) clearly states that “It shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following: THE PARTY AGAINST WHOM ENFORCEMENT IS SOUGHT HAD NOT LESS THAN SEVEN (7) CALENDAR DAYS BETWEEN TIME THE PARTY WAS FIRST PRESENTED WITH THE AGREEMENT AND ADVISED TO SEEK INDEPENDENT LEGAL COUNSEL AND THE TIME THE AGREEMENT WAS SIGNED.”
This does not mean that the prenup is automatically no good. Nothing is automatic. What this means is if you don’t follow the rules, and the asshole you married decided to challenge the prenup, he/she would win. Prenup down the toilet.
I am overprotective of my clients, so my policy is to wait for a FINAL AGREEMENT to be accepted, then start the waiting period the very next day. A FINAL AGREEMENT means there are no more changes, no more hemming and hawing, NADA. For the math dummies out there, this means you add 8 days to finalization date. For example, if the prenup is finalized today, March 5, 2015- you add 8 days, and you can sign starting on March 13, 2015. The signatures can even happen ON the day of your wedding, but I don’t recommend it. I probably would sign at least a MONTH before the wedding.
TIP #3: GET OVER YOUR FEAR OF A PRENUP
Prenups is not a scary P word. You know what is? Puberty, Public speaking, Paranormal Activity: Things you have absolutely NO control over. You may not be able to control the direction of your marriage, but with a prenup, you can control your divorce. (This statement comes with a disclaimer because as you well know, some assholes will still challenge a bullet-proof prenup). A carefully drafted prenuptial agreement can’t protect you from those assholes, but it may save you a ton of money.
TIP #4: GET OVER THE FEAR OF INSULTING YOUR FUTURE SPOUSE
Pop culture is adamant on giving prenups a bad name. There is so much stigma surrounding this. Is it the word “prenup”? One of my clients (who used the F word a lot) once told me “prenup” was the dirtiest word alive. Look, I can’t help that it sounds dirty. I don’t particularly like the word either. A divorce has to happen before the prenup comes to play, so it’s like a wretched omen. It’s like “life insurance”. It sounds so greedy – and dependent on someone’s death!
No one likes to think about death or divorce. But, it happens – marriage ends with one or the other. And if it’s done right, you get another lovely P word – protection. Yummy. My F-word loving client and I decided to call the “prenuppy” a “puppy”, and we put a little red bow on it. Best. Gift. Ever.
Finally, you should know that the prenup-law is anti-divorce. Prenups that “promote” divorce are unenforceable. Talk to your lawyer about what constitutes “promoting divorce”.
Here is a post I wrote about how to gingerly bring up the idea of a prenup to your future spouse.
TIP #5: SPEAKING OF P WORDS, HERE ARE THE 3 P’S TO A PRENUP
PROTECTION OF PROPERTY: California applies the draconian “community property” law. Everything acquired after date of marriage, prior to date of separation is community property. This includes that winning lottery ticket that your husband told you NOT to buy. Also includes your wife’s Neiman Marcus addition.
PROVIDING OF SUPPORT (OR NOT) AFTER MARRIAGE: What word is dirtier than “prenup”? Try alimony. Spousal Support. Especially to a cheating, lying no-good, abusive spouse. California does not care if your wife cheated on you. If you supported her during the marriage, you’ll need to support her after the marriage.
PRESERVATION OF SEPARATE ASSETS AND DEBTS: Separate property are assets and debts that existed prior to the marriage. Sound lovely. EXCEPT if you co-mingle and/or transmutate. Dirty words everywhere! Ask your lawyer about these words.
TIP #6: THESE THINGS ARE ENFORCEABLE
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
- The ownership rights in and disposition of the death benefit from a life insurance policy.
- The choice of law governing the construction of the agreement.
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
TIP #7: THESE THINGS ARE NOT ENFORCEABLE
You can still put social media, cheating, religious stuff, and mandates on sexual activity clauses in your prenup. Just remember they may NOT be enforceable if the asshole challenges it.
You also should NOT put anything relating to custody or child support in the prenup, as it won’t be enforced.
Finally, don’t put anything in the prenup that encourages divorce.
TIP #8: IF YOU ARE INCLINED TO GET A MARITAL AGREEMENT, GET ONE BEFORE THE MARRIAGE
Difference between a prenup and a postnup is a marriage in between.
Several clients who call me missed the deadline for a prenup. They shrug it off and say, I’ll just get a post-nup. News from the underground: post-nups required much more disclosure and is less loved by the Court. If you are inclined to get a prenup, leave yourself enough time. Do not fool yourself into thinking a postnup will be as easy.
TIP#9: EDUCATE YOURSELF
Before getting a prenup, school yourself. I recommend reading the California Family Code, sections 1600 et seq. It’s pretty good stuff. If reading statutes isn’t your cup of tea, try this book, “Prenups for Lovers“.
Now that you know everything you need to know about prenups, you can call a lawyer now to help you draft one. My fee for a prenup is $10,000.
Oh wait, no – that’s my standard retainer for a divorce. Prenups start around $2,500, depending on the work that needs to be done.
Marriage is grand, people. Divorce is 100 grand.