FAQs about Pre-Nuptial Agreements in California
FAQs about Pre-Nuptial Agreements in California
I love being married. It's so great to find that one special person you want to annoy for the rest of your life.
- Rita Ruder
Many couples find that a prenuptial agreement helps increase their security during the marriage, and ease the transition should it end. Others believe that starting out with a request for a prenuptial feels like it will create a foundation of distrust and be a cloud over what might otherwise have been a happy union.
Prenups offer predictability and marriage and the future can be unpredictable. If you've been through a terrible divorce in the past, asking for a prenup may be a no brainer. If you have children from a prior marriage and want to protect them financially, you may want a prenup. It really is up to the couple to decide.
A prenuptial agreement is a contract or agreement between two people prior to their marriage. This document contains different issues like provisions for the division of property, spousal support in the event of break-up of marriage and other matters. Planning your wedding can also include a plan for your prenuptial agreement. Dealing with your finances beforehand and agreeing upon certain rights and responsibilities can avoid dealing with conflict, uncertainty or the state law on divorce later.
Questions about Prenuptial Agreement
Q. Is a prenup valid if signed right before the wedding?
"Two hours after we got married, we signed our prenuptial agreement, is it invalid? I have heard that signing it 48 hours before a wedding is not valid."
A. There is no such hard rule about invalidation if a prenup is signed right before the wedding. A prenuptial agreement is legal as long as both persons have a full knowledge of the contract and its underlying meaning. If one prospective spouse is considered less sophisticated than the other when it comes to financial issues, and this person was placed under pressure or threat to sign, the court may set aside the prenup. A last minute signing will likely cause the court to take a closer look at your prenuptial agreement. But timing alone won't invalidate it.
Q. Can a prenuptial agreement protect us from my spouse's ex seeking more child support?
A. Couples who plan to get married with kids on one or both sides should adopt a sensible prenup and an estate plan before the wedding to provide for the kids under any future scenario. A prenuptial agreement that keeps property strictly separate makes sense, because it can keep it out of reach of your spouse's ex that make seek an increase in child support based on the assets that you bring to the family. Depending on the state of residence, a prenup can result in savings when it comes to child support because the balance sheet of your spouse is not inflated by your income.
Q. Can I remain the rightful owner of my home after marriage and have my spouse become a tenant?
A. As long as the real estate is kept separate, property owned by a person prior to his or her marriage can solely belong to that person. If the new spouse starts to contribute to mortgage payments or improvements, the ownership issues begin to get complicated. In order to avoid this uncertainty, a written agreement between you and your spouse can be drafted that will put into writing that your new spouse agrees to pay a reasonable rent in order to become your tenant. It will also specifically state that you are still the owner of the property.
Q. Can a post nuptial agreement be done on your own without a lawyer?
A. Yes, although a post nuptial agreement can have strict requirements about its preparation and signing, it can be done without a lawyer. There are state requirements that you should also consider when writing this agreement.
Q. If my fiancé is heavily in debt, should I refuse to marry him?
A. If a spouse-to-be owes money, your properties and assets that were yours before you got married will not be use to lien on his debts. Those debts he had before you got married will remain on his own accountability. There is an important exception, however, if you live in a community property state. Creditors can go after your property that either of you earned or acquired during your marriage. If they do, your only recourse is to ask for reimbursement from your spouse for the portion of that property collected by the creditors on your spouse's premarital debts.
In order to avoid this from happening, it would be wise to have a Premarital Agreement in order to protect the assets you owned before you were married. This will shield you and your property from any creditors coming after to collect your fiancé premarital debts.