Prenups: Fact or Fiction?

Premarital agreements, or prenups, have a bad rap. The word “prenup” brings to mind fears of abandonment, trickery, and paranoia. But a premarital agreement, in its simplest form, is essentially just a contract between prospective spouses fixing marital property rights and financial responsibilities upon consummation of their marriage. Another way to look a prenup is that it actually fosters conditions to help preserve the marriage, not to impede it. In fact, if either or both spouses are bringing assets (or debts) with them into the marriage, a premarital agreement may be a preferred choice.

To help dispel some rumors and myths, this article will go through some common facts and misconceptions relating to premarital agreements.

Fact or Fiction?

“Prenups are designed to avoid, or alter, the applicability of California’s community property laws.” FACT. A primary objective within a premarital agreement is to clearly define each prospective spouse’s expectations as it relates to assets already owned by each, and to property and income acquired or earned during the marriage.

“A prenup will complicate my potential divorce action.” FICTION. In fact, valid premarital agreements actually narrow the issues that may later be in dispute and thus help avoid contested or costly litigation.

“We cannot agree to waive our responsibility to support each other during our marriage.” FACT. Under the law, spouses have a duty to support each other while they are married and living together. This cannot be bargained away. However, when entered into voluntarily by parties who are each represented by independent counsel and aware of the effect of the agreement, a post-1985 premarital waiver of post-dissolution support is not necessarily unenforceable. The analysis regarding the enforcement of such a waiver may turn to whether it is found unconscionable at the time of enforcement.

“We can agree to waive future child support obligations for our children.” FICTION. This is a hard no-no. Parties’ agreements to waive child support for their children are unenforceable and contrary to California’s public policy. So don’t even think about it!

“We have to be honest in our disclosures of any property or financial obligations.” FACT. Fraud is an easy way to legally challenge the enforceability of a prenup. Further, if a party was not provided a “fair, reasonable, and full disclosure” of the other party’s property or financial obligations, and they did not expressly waive their right to such a disclosure, the prenup will likely be unenforceable.

“If he or she commits adultery, I can make them pay.” FICTION. California is a “no-fault” divorce state. A premarital agreement is unenforceable as contrary to this public policy to the extent it imposes a penalty on one of the parties for “fault” during marriage.

Final Thoughts ON PRENUPS

Entering into a premarital agreement with your prospective spouse is generally a good idea, especially if one or both of you have significant assets or obligations. It can help to actually promote the upcoming marriage by clearly defining the property and financial obligations of each spouse during their marriage.

At The Zarin Law Firm, APC we have extensive experience in drafting premarital agreements. If you are interested in discussing your situation with one of our Family Law Attorneys, please Call or Contact Us to schedule a free initial consultation.