Contra Costa County Lawyers Handling Prenuptial and Postnuptial Agreements
In the lead-up to marriage, most couples understandably think about all the happy times they will spend together. They may not allow themselves to consider the possibility that one day the marriage will end in divorce, despite the statistics showing that roughly half of marriages end this way. As a result, couples often find themselves in unexpected divorce battles that quickly prove costly, both emotionally and financially.
Walnut Creek couples can be proactive in planning for an eventual divorce if they can bring themselves to have some uncomfortable conversations. The goal of these conversations is to create a contract called a marital agreement. It will be called a prenuptial agreement if reached prior to the marriage or a postnuptial agreement if reached during the marriage.
At Kaspar & Lugay, LLP, we are well versed in helping Walnut Creek and Contra Costa County couples negotiate and formalize marital agreements. Our lawyers understand the challenges that arise when a couple is trying to build a long-lasting relationship while at the same time contemplating how things should be handled if the marriage breaks down. It is a difficult emotional situation, but clients trust us to guide them through it.
Prenuptial Agreement Basics
A prenuptial agreement is a contract entered into by the spouses describing what should happen to the couple’s assets and debts if they get divorced in the future. The contract is written prior to the marriage and becomes effective when the marriage takes place. To be valid, the prenuptial agreement must follow the rules and requirements of California’s Uniform Premarital Agreements Act (UPAA).
Requirements to Create a Valid Prenuptial Agreement
Under the UPAA, a valid prenup requires:
- A written contract (no verbal agreements allowed)
- All terms in the contract are lawful
- Full, reasonable and fair disclosure of each party’s assets and debts
- Signatures of both parties
- Signed voluntarily (not under duress or coercion)
- Signed by a notary
- At least seven days must pass between the time the spouse was presented the final agreement and the time he/she signed it.
Parties are not technically required to have lawyers draw up their prenup. However, for all practical purposes, courts are very skeptical of prenups that did not involve lawyers. There is simply too much at stake to allow unrepresented people to enter into these contracts without the advice of counsel. So, prenups that did not involve lawyers are very likely to be ruled unenforceable in court.
What Can and Cannot Be Included in a Prenuptial Agreement Under the UPAA?
In California, a prenup can cover any type of property. “Property” is broadly defined and includes items such as bank accounts, insurance, retirement accounts, business assets, real estate, income, debts, investments and other financial assets, as well as debts.
A prenuptial agreement cannot include:
- Child custody or child support
- Spousal support, unless the spouse had independent legal counsel before signing
- Provisions that would require a spouse to do something illegal
- Unfair, unjust, or deceptive terms
- Terms that could be interpreted as encouraging divorce
- Terms that require a spouse to behave a certain way during the relationship
Postnuptial Agreement Basics
A postnuptial agreement serves the same purpose as a prenup, only the postnup is entered into after the marriage. Like a prenup, a postnup can be used to outline how the couple’s income, assets and debts are to be divided should they ever get divorced.
Perhaps the most important distinction between prenups and postnups is that prenups are presumed to be valid while postnups are presumed invalid. In other words, courts will not enforce a postnuptial agreement unless every “t” is crossed and every “I” is dotted correctly. One reason courts heavily scrutinize postnuptial agreements is that these agreements have often been thought to encourage divorce by making it easier for spouses to give up on the marriage, take their property, and leave.
A valid postnup must meet all the same requirements as valid prenup (written, signed and notarized, fair, voluntary, equitable, and full disclosure). And, it is highly likely that the postnup will only be found enforceable if both parties were represented by independent counsel. Finally, postnuptial agreements cannot be used to determine child custody or child support.
Contact Our Walnut Creek Lawyers with Your Prenuptial or Postnuptial Agreement Questions
If you are interested in exploring a prenuptial or postnuptial agreement, the family lawyers of Kaspar & Lugay, LLP are here to explain things in detail, provide advice and draft documents. If you already have an agreement and need to prove or challenge its validity, we can do that, too. Start the conversation by calling us at 415-789-5881 or contact our Walnut Creek office online any time.