Prenups: Everything You’ve Ever Wanted To Know

Prenups: Everything You've Ever Wanted To Know

Today, I had the distinct honor of being on AirTalk with Larry Mantle.  The subject was prenups.  You can hear it here!

So let’s talk about this. Is it romantic? I think so.  I would much rather KNOW everything about my life partner than pretend to know.  Wouldn’t you?  Every year, around Spring time, and right about now (September is for lovers – sooo many weddings in September), I will get all these call.  Here is my advice, straight up.

DO NOT RUSH A PRENUP.

I’ll say it again.  Don’t rush it!  I had a caller today on the show who said her fiance presented her with a prenup 3 days BEFORE the wedding.  Seriously!?  It’s good news for her (it’s probably unenforceable), but generally, why pay for an enforceable contract? Remember, California law requires a waiting period (minimum should be 7 days from FINAL draft).  So, an optimal time to get a prenup would be about 3 months before your wedding.  And sometimes sooner.

SPEAKING OF WAITING PERIODS, WAIT AT LEAST 7 DAYS.

California Family Code section 1615(c)(2) states this: “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 the 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.”

Bingo, Maria.

He didn’t give you enough time, so probably, in the future, if you don’t like your prenup, try and toss it out in court!  I am Mama bear when it comes to my clients, so I usually am overly cautious and make them wait 7 days from the FINAL draft, not just the initial draft.  (after all, after 7 rounds of changes, it could be an entirely different contract by the time it’s done).  For example, if the prenup is finalized today, August 9, 2017, you will want to wait at least 7 days, and sign it on the August 17th or later.  So make sure your wedding is after August 17th!

PRENUPS DON’T JUST PROTECT YOU FROM EX-SPOUSE!  CREDITORS TOO!

I got a sad call from a former client.  I drafted her prenup a few years ago.  Her husband recently passed away from COVID19.    Prior to his death, he had a prolonged hospital stay, generating astronomical hospital bills.  My client owns a lot of properties. Luckily, she had a prenup, and thus, the debt was NOT community debt, and the creditors couldn’t come after community property, as the prenup WAIVED community property.

One of the callers on the radio show went through something similar.  After her husband unexpectedly passed away, she discovered he was involved in a lot of illegal activities, including mortgages on lots of properties, bankruptcies, and probably money laundering.  Well, the creditors came after the community property.  She was very upset and warned all listeners of the show to GET A PRENUP.

Without a prenup, California is one of 9 states that says HIS DEBT is YOUR debt.  (Also, don’t marry a criminal husband).   Community property is not fair!

GET OVER THE FEAR OF INSULTING YOUR FUTURE SPOUSE.

Like online dating, there is no longer a stigma surrounding a prenup.  Get over it!  No smart lover is going to love you less because you want to protect yourself.  It’s actually a good conversation starter for some other conversations you must have before you get married: do you want children?  Are you a permissive or strict parent? Do you eat pork?  What is your religions: do you believe in God? Do you invest in Google? The more you know, the better your marriage is.

KNOW YOUR 3 P’S IN A PRENUP.

Here you go, nice and easy: Protection of property; Providing Support (or not); Preservation of Separate Property.  2 big reasons for prenups are waiving community property and limiting spousal support obligations.

WHAT IS ENFORCEABLE?

These things: property, anything to do with alimony (spousal support).

WHAT IS NOT ENFORCEABLE?

Nothing regarding children, or behavior/conduct of the other side.  So no, don’t put, you will get 100% if the other side gains 250 pounds during football season.  Or, you get 100% if other side cheats.  Sometimes, to scare someone, you can jokingly put it in there.  But, it’s not enforceable, so just know that before you stick in a clause like that.

EDUCATE YOURSELF.

You are on my website!!  Google lots of information about prenups!  it’s free!  And, you know where to find me if you’re on.

Remember: Marriage is grand. Divorce – a hundred grand.  GET A PRENUP!

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