Prenuptial And Postnuptial Agreements Allow You To Set Your Own Divorce Terms
It is far easier to get married in California than to get divorced. One problem is that California divorce laws dictate terms that aren’t necessarily appropriate in every case. The good news is that with some foresight and planning, the divorce process can be faster and more predictable, potentially reducing costs and conflict. By entering into a prenuptial (or premarital) and postnuptial (or post-marital) agreement, a couple can decide for themselves what their property and certain support rights and obligations should be, rather than allow that decision to be made for them by state divorce laws.
It is important to consult a qualified family law attorney, as pre- and postnuptial agreements are legal contracts that are enforceable by law and may be difficult to challenge. At Katherine Shlaudeman Law and Mediation Practice, I work with individuals and couples who wish to negotiate terms of property division, and certain support rights and obligations before they are married, or during their marriage. My firm has been helping clients resolve their divorce differences effectively since 2007, and I bring over 15 years of experience to each case and client.
What Is A Prenuptial Agreement?
An engaged couple creates and enters into a prenuptial agreement before they get married. This legally binding contract addresses, in specific terms, many matters, including the following:
- Who gets what assets in the event that you decide to end your marriage
- How finances and assets will be handled during the marriage
- The terms of any alimony or spousal support
- Any business ownership issues
- What to do with your estate in the event that one of you predeceases the other
- The handling of gifts, inheritances or trusts
- Benefits and disability, and insurance coverage
Contrary to popular myth, prenuptial agreements are not just for the wealthy, nor are they a sign that a couple expects to get divorced. Rather, they serve as a sort of divorce insurance. If you and your future spouse ever decide to part ways, having a potential settlement agreement already prepared may reduce the cost and stress of a divorce, especially if your estate is complex or worth a great deal. A comprehensive prenup can protect the rights of each spouse and help prevent disagreement or conflict.
What Is A Postnuptial Agreement?
A postnuptial agreement serves the same functions as a prenup and is designed with the same goals in mind. Rather than being created before marriage, however, it is written and signed after a couple has already wed. Most of the issues that can be addressed in a prenuptial agreement can be addressed in a postnuptial agreement as well, and both agreements require full financial disclosure and mutual consent.
However, married couples are considered fiduciaries of each other. This means that any postnuptial agreement they enter into must comply with certain legal duties and obligations. Postnuptial agreements may also face more scrutiny in court to ensure fairness since they are created after the marital commitment. For these reasons, it is important that the agreement be drafted correctly and that all financial disclosure requirements are met.
Challenging And Enforcing Prenuptial And Postnuptial Agreements
If you have a prenup or postnup that your spouse wants to contest, it is important to retain an attorney who has experience drafting and enforcing these agreements. If you and your spouse cannot resolve the dispute out of court, you may need to litigate it.
On the other hand, you may be able to challenge the agreement in court if you faced undue pressure or coercion, you were deceived into signing or you signed without full disclosure of your spouse’s financial resources.
Negotiating Terms With The Help Of Collaborative Law Attorneys
Choosing how your agreement is negotiated and drafted is very important, as this could impact both the enforceability of the final agreement and satisfaction with the relationship itself. It is a decision that you and your future or current spouse should make together. The traditional adversarial process is not the only option and is often not the best option. Many couples work together to create their own agreements in mediation or a collaborative setting. In both cases, each person still retains his or her own attorney to educate them on the law, and help protect their rights and interests.
My training and experience allow me to work in various capacities. I can represent individuals in the drafting and negotiation of these agreements or work with couples as a mediator.
Frequently Asked Questions About Prenuptial And Postnuptial Agreements
Do you have questions about prenuptial and postnuptial agreements? You may find your answers below:
Can a prenuptial agreement address child support and custody?
Prenuptial and postnuptial agreements can cover a lot of divorce matters, including asset division, alimony and other financial subjects. These documents can speed up the divorce process.
However, prenuptial and postnuptial agreements cannot address child support, custody or any other child-related issue. In a divorce, those issues are always decided according to the best interest of the children, not the parents’ wishes. I also provide legal services for child custody, visitation and support. If you are looking for a faster, easier divorce, I can help you explore your legal options, such as mediation.
Can a postnuptial agreement be used to modify an existing prenuptial agreement?
There are many reasons to revise a prenuptial agreement, such as protecting newly acquired real estate or business. However, situations – and relationships – can change over time. That can make a prenuptial agreement feel like it is outdated.
A postnuptial agreement can be used to revise a prior marital agreement, allowing couples to address new concerns about asset protection and other financial matters. Prenuptials are often revised when couples experience significant life changes, such as extreme changes in employment, the birth of children, the decision of one spouse to leave a career to support the other spouse’s ambitions and so on.
What factors are considered when determining the validity of a prenuptial or postnuptial agreement in California?
A court may consider a few factors before agreeing to the validity of an agreement, such as whether both parties were fully transparent about their assets, debts and liabilities when they were negotiating the agreement. An agreement may be challenged if a spouse claims that certain information was not disclosed.
A prenuptial and postnuptial agreement must be freely negotiated and voluntarily signed. A spouse cannot be pressured into signing an agreement, or that would invalidate the document.
Lastly, a prenuptial and postnuptial agreement must have fair terms. An agreement can not heavily favor one spouse to the point that the terms are unconscionable.
Is A Prenup Or Postnup Right For You? Contact Me To Learn More.
To discuss your legal options and learn how Katherine Shlaudeman Law and Mediation Practice can help you, call me today at 415-413-4488 or contact the firm online to schedule a consultation. My services are offered virtually to clients in San Francisco and surrounding areas of California, including San Mateo, Santa Clara and Alameda counties.