Is Your Prenuptial Agreement Enforceable?

Is Your Prenuptial Agreement Enforceable?

Let’s face it, lawyers ain’t cheap.  For a “simple, run-of-the-mill prenup ” (no such thing!!!),you can expect to pay about $3500 – $5000, and upwards of $25,000- $50,000 for a complicated, complex prenup with tough negotiations.  And it’s worth every penny, because as I like to say, “Marriage is grand! Divorce…a hundred grand”.

With divorce rates as high as they are, and the fact that the legal union is dependent on TWO people fulfilling their promises (not just you!), I would not enter into a marriage without at least DISCUSSING a prenup.

A prenuptial agreement is a contract that you sign with your fiance(e) before you get married. The contract dictates what will happen in the event you two divorce or separate.  If you do NOT have a prenup, the state you live in has one for you – it’s called the “law”.  For example, California is a “community property” state (1 of 9 special states!!!). This means, everything you acquire AFTER date of marriage, BEFORE date of separation is community.  All assets and debts.  This law could be quite onerous if you accidentally marry a gambling or shopping addict, and could be even worse if you end up the unwilling sole supporting spouse in a marriage.

Prenups are never easy.  They’re not easy to talk about, and never easy to draft.  Everyone is different.  If you do decide to get a prenuptial agreement (and I sincerely hope you do), make sure you understand that like any contract, a prenuptial agreement can be invalidated (ripped up).  If you are paying for one, you want to make sure that you do everything to ensure it is later enforceable.

First, read Family Code Sections 1610-1617 . This is California’s Uniform Premarital Agreement Act. (the law on prenups).  The more you know…

Make sure your spouse has independent counsel.  Technically, the law says they can waive it. But I don’t recommend this at all!  I personally do not represent people on prenups where the other side has no representation.

Do your full disclosures!!!  Enforceable prenuptial agreements have met the burden of  exchanging financial information.  Some clients are very averse to sharing full details with their spouse.  But you must!  Without a full disclosure, your prenup will later be unenforceable.

No fraud, duress, or undue influence.  Again, both parties must voluntarily sign on their own.  and have counsel!

Make sure the prenuptial agreement is not unconscionable.  Oh, this word is so vague.  It just means make sure a later third party won’t find it noxiously unfair.  (vague!).

Follow the rules in Family Code 1615.  Consult a lawyer.  It’s worth it.

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