Imagine for a moment that you and your significant other have just gotten engaged. Over the course of making plans for your wedding though, the topic of drafting a prenuptial agreement comes up. Your soon-to-be spouse is nervous about signing such an important legal document and with good reason. The law can be complex and one small mistake could have significant repercussions.
As some of our San Francisco readers know, there are a lot of things that a prenuptial agreement can account for that can make the divorce process easier. Unfortunately, there are a lot of myths surrounding these legal documents, including three that we wanted to talk about in this week’s blog post.
Anything can be outlined in a prenup
Contrary to popular belief, a prenuptial agreement cannot cover everything that will come up during the divorce process. Issues such as child custody, visitation and child support cannot be part of a prenuptial agreement because these issues need to be handled by a family law judge.
Prenuptials agreements also cannot outline any personal obligations in the marriage. Things such as whose name to use after marriage to how chores will be divided are just two things that cannot be put in these agreements.
The topic of spousal support is a little different though. Generally speaking, these contracts are not considered enforceable if they have provisions that waive spousal support payments, unless the spouse has received independent counsel and knows the legal repercussions of such a decision.
Once a prenup is signed, there is no going back
This is another common misconception that could make anyone nervous about signing a prenuptial agreement. Thanks to Section 1614 of the California Family Code though, prenuptial agreements can be amended or revoked after marriage. It’s important to point out however that in order to do this, a couple must submit a written and signed agreement before the changes are enforced.
A prenup is always enforced by the courts
There are several things that can prevent enforcement of a prenuptial agreement. They can range from statements that encourage divorce to instances where a spouse was forced to sign the agreement under duress. It’s for these very reasons that some people seek legal counsel before drafting these agreements.
Source: Prenuptialagreements.org, “Prenuptial Agreement California,” Accessed Aug. 12, 2014