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How to create a valid prenuptial agreement in California

Like other states, California law expressly allows a couple, as long as certain conditions are met, to make an enforceable agreement before they get married spelling out how their property will be divided or disposed of when their marriage ends. While these prenuptial agreements are helpful in the event the couple later divorces, they also serve other purposes, including some related to estate planning.

There are several requirements a couple in Tiburon and other parts of the Bay Area must meet in order to create a prenuptial agreement that California's courts will enforce. The easiest requirement to understand is that a person must have a week to look over the agreement before signing it.

On a related point, the person signing the agreement must have his or her own attorney, that is, an attorney who is not representing "the couple" or the other partner in the relationship. This is true even if the couple has known the attorney for a long time and trusts him or her. In lieu of hiring one's own attorney, the person who had the agreement drafted can provide a disclosure spelling out exactly what the agreement requires.

Perhaps most importantly, both parties have the right to receive full disclosure of the other person's financial condition, such as his or her assets, debts, and income before signing the agreement. Even if no one is trying to mislead anyone else, this can be tricky, as simply forgetting about a piece of property or accidentally leaving it out of discussions can invalidate a prenuptial agreement.

Californians should also note that prenuptial agreements are generally limited in scope to questions about property. They are not meant to cover things like child custody and child support, and any agreement between a couple regarding these issues may be unenforceable down the road.

While prenuptial agreements offer a lot of advantages to many people in many situations, it is important to make sure that they are properly drafted and executed according to California's legal requirements. To ensure that their legal rights are protected and that their agreement is drafted in fair and favorable terms, Californians considering a prenuptial agreement may want to discuss the matter with an attorney of their choosing.

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