What You Can and Cannot Do With a Pre-Nuptial Agreement in California
What You Can and Cannot Do With a Pre-Nuptial Agreement in California
The greatest marriages are built on teamwork. A mutual respect, a healthy dose of admiration, and a never-ending portion of love and grace.
- Fawn Weaver
A prenuptial agreement (or "prenup") is a legally binding contract created by two people before they marry, addressing such issues as the property bought into the marriage by each person and what the financial settlement and property rights of each will be should they divorce.
Couples can spell out the financial responsibilities of each should there be a divorce, they can articulate specific expectations of each during the marriage (and remedies should these commitments not be met).
Marriage is a serious business and all couples should consider a prenuptial agreement and a strong understanding of the laws of their state pertaining to divorce. The agreement is commonly used by people with substantial assets, potential inheritance, high income or children from prior marriage.
Before signing a prenup, you should have a clear understanding of its purpose and what it can or cannot do on your behalf.
What is allowed in a Prenuptial Agreement:
• Identify who gets what in a divorce. Prenuptial agreement can be use to set the rules for property distribution thus preventing disagreement during a divorce. Without this document, the state law will be the one to determine how the property will be allocated upon your divorce. Getting or not getting alimony can also be stated in the prenup but a lot of states do not allow agreements regarding alimony.
• Separate finances.When a couple is married, all the property they have accumulated during the course of their marriage is considered marital or community property even if these assets aretitled in one spouse's name. When one of them dies or they divorce, these properties will be equally divided through agreement or a court order. The best way to avoid having the court decide all property settlements in death or divorce is to spell it out in a prenuptial agreement.
• Determine property distribution at the death of one spouse. A prenup can be used to waive your inheritance rights and declare your intentions of forgoing certain property rights at the death of a spouse. In addition to a prenup this should be spelled out in estate planning documents that can actually transfer your property as planned. This includes making a will, a Living Trust and other estate planning documents.
• Debt protection.One or both spouses may bring substantial debt to a marriage. Creditors may turn to the marital or community property to settle the liability of one spouse. Having a prenup can limit the liability for each others' debts.
• Provide for children from prior marriage.You may wish to make sure that children from previous marriages have a share in the property you own. Having a prenup can protect the children's rights and prevent one spouse from claiming the other's property if one of them dies.
• Keep property in the family. A prenup can include property (e.g. family heirloom or share in the family business) that you want to keep within your birth family, as long as it is agreed upon by both of you. Even a future inheritance can remain in the family through a prenup.
• Clarify responsibilities during the marriage. Other uses for a prenuptial agreement can be stated in terms of marriage responsibilities like:
• Income tax returns, whether joint or separate filing
• Who will pay the household bills and the funding source for these obligations
• Whether to have a joint bank account and who will manage it
• Agreements regarding specific purchases
• How to handle credit cards
• Agreement on setting aside money for savings
• Agreements regarding education
• Agreement regarding the provisions for the surviving spouse just in case the other one passes away.
• How to settle disagreements in the future
What is not allowed in a Prenuptial Agreement:
• Restrictions on child support, custody or visitation rights. Lawmakers regard the welfare of children to be a matter of public policy. They won't enforce any private agreement that can impair the child's right for a future relationship with a parent
• Give up the rights to alimony. This is a separate maintenance or spousal support whenever a divorce occurs. Some states do not allow the giving up of the rights for alimony.
• Encourage divorce. Prenups should not be use as a sort of financial incentive for divorce to one party. When this is the case, it will be set aside.
• Create rules about non-financial matters. This refers to the issues that is not related to property or financial matters like:
• Chores in the house
• Use of last name after marriage
• Agreements regarding children
• How to communicate to in-laws or stepchildren
• Agreements regarding pets and its care
You may use prenups for financial purposes, but not for nonmonetary agreements. If you want to make clear the responsibilities with regards to the non-monetary concerns, you may list it down on a separate document that can clarify your wishes and intentions rather than include it as part of a prenuptial agreement.