Prenuptial Agreements
Amidst all the excitement and positive emotions leading up to marriage or a domestic partnership, the notion of a prenuptial agreement, or “prenup”, can be an incredibly delicate topic to broach. However, a prenuptial agreement can be a very smart, practical move, providing a road map that smooths the divorce process in the event the marriage does not last. If you’ve reached this page in search of answers for your prenuptial or postnuptial agreement, contact our office today to schedule a consultation with our Bay Area family law attorney.
At Schoenberg Family Law Group, P.C., we believe that entering into a prenuptial agreement is a prudent move that can support you in planning for life together as a married couple. The prenup drafting process can facilitate important conversations about values and goals, while also helping you be prepared in the event that the marriage doesn’t last. We also recognize that creating a prenuptial agreement can be a delicate and emotional experience for people getting ready for marriage. Our goal is to help you balance the creation of a meaningful and long-lasting relationship with establishing a sensible, tailored plan for how assets and liabilities will be divided in case of divorce.
We know that, in many cases, if you wait until the marriage is breaking down to decide on terms, you and your partner may be too estranged, angry, and emotional to rationally undertake the task of resolving your differences and competing interests. Therefore, identifying the property brought into the marriage/domestic partnership, defining how income and assets acquired during the marriage/domestic partnership will be characterized, and who has the legal right to control separate property can give you clarity and peace of mind.
A prenup protects each spouse’s financial assets and property in the event of a legal separation or divorce. Prenuptial agreements assure that the division of property is predetermined in order to help avoid conflict or litigation between the spouses.
What you need to know about creating a prenuptial agreement in California:
- Both parties must be represented by independent legal counsel
- There must be full disclosure of all income, assets, and liabilities of each party to the agreement. Remember that the prenuptial agreement includes provisions for the division of debts, assets (real property and personal property), life insurance, spousal support, and many other financial issues on which we must devote keen attention
- The agreement must be fair and must not leave either party without the means for support in the event of a divorce. The agreement must be free of duress, undue influence, or any type of threat whatsoever
- Our practice is to ensure that once we have negotiated the final draft of the agreement, the parties wait an additional seven days before signing the agreement. This cooling-off period gives both parties time to reflect before signing a contract
Meeting with lawyers and negotiating a premarital agreement is an intensely personal decision on your part; however, in our more than 35 years of experience practicing family law exclusively, we know of no couple who has regretted having had their premarital agreement carefully and thoughtfully prepared.
We strongly recommend that our clients give serious consideration to determining the division of income, assets, and debts before emotions become inflamed and the dissolution of the relationship becomes a reality. An improperly drafted prenup often leads to even more litigation in the future. Our firm has the skill and experience to ensure that your prenuptial agreement is thorough, accurate, and will stand the test of time to be legally binding should a party challenge its enforceability at a later date.
At Schoenberg Family Law Group, P.C., our knowledgeable and experienced team competently and thoroughly addresses complex financial issues, including business and corporate interests, pensions and retirement plans, stock portfolios, and real property. We offer sound advice and thoughtful guidance to clients who wish to negotiate a prenuptial agreement. Our expertise in complex financial matters ensures that we will diligently verify both parties’ assets and debts and draft agreements that best protect our clients’ rights and interests.
Our Experience in Numbers
Our proven track record in marital agreements speaks for itself:
- Over 200 years collective experience of family law practice
- Thousands of custody and child support cases handled by our attorneys
- Serving families across San Francisco and the Bay Area
- Recognized by Super Lawyers every year since 2008
These numbers represent not only our deep experience, but also the trust our clients place in our team to protect their most important interests.
What Is a Prenuptial Agreement?
In signing a prenuptial agreement, you are not signing away your hopes of a happy marriage. Many couples fail to draft these agreements because they wholeheartedly believe that they will not divorce in the future. However, a prenup is neither a sign of distrust nor a guarantee of divorce.
Simply put, a prenuptial agreement is a notarized and signed contract between two people who are getting married. It determines how the couple will handle their finances and establishes the property and financial rights of each partner in the event of a divorce.
To be valid, a prenup must be:
- In writing
- Signed before marriage
- Notarized
- Voluntary
- Fair for both parties
- Contain full financial disclosure
Many happy couples sign prenups and never end up using them. Prenups are especially popular among people marrying for a second time and beyond. Contrary to popular belief, prenuptial agreements are not just for couples with an uneven distribution of wealth or lots of money and assets. Anyone can sign a prenuptial agreement.
How Do You Make a Prenuptial Agreement?
To make a prenuptial agreement, you will need to meet with an experienced attorney who will sit down with you and walk you through the drafting process, asking questions about:
- Both partners’ assets and liabilities
- Important issues regarding your finances and the marriage
- Your goals for the future
Both partners must be open and honest in prenuptial discussions. Your attorney will then draft an agreement that will suit both your needs, which is subject to your final review.
Is a Prenup Right for You?
Not every couple needs or desires a prenuptial agreement. You may have reservations about the process or concerns about what it means. It’s important to have a frank discussion with your partner and an experienced attorney to determine if a prenup is the best option for your specific situation.
Some advantages of prenuptial agreements include:
- Opening up discussion about sensitive financial matters
- Protecting your personal and business assets prior to marriage
- Minimizing battles over finances and assets during divorce
- Preserving family ties and inheritance
- Outlining financial expectations, aligning values and goals prior to marriage
Client Testimonial
“Ms. Schoenberg negotiated and drafted my prenuptial agreement. Her knowledge of this area of law is immense. She did a superb job and made the whole process seamless for all those involved. I highly recommend her!” – Anonymous Client, San Francisco
Read more client testimonials.
Postnuptial Agreements
A postnuptial agreement is similar to a prenuptial agreement, but executed after a couple is already married. A postnuptial agreement serves as a viable alternative for spouses who married without a prenup. It offers married couples an opportunity to protect each individual’s assets and financial health in the event of a legal separation or Divorce.
A postnuptial agreement outlines how the couple’s income, assets, and liabilities are to be divided in the event of a separation or a divorce. You can set forth how separate and community property, acquired before and during the marriage, will be divided. However, under California law, while a prenuptial agreement is assumed to be valid (providing it complies with the requirements discussed earlier), a California postnuptial agreement is not automatically assumed to be valid — these agreements face tough scrutiny from the court and must strictly adhere to all requirements regarding representation, disclosure, and fairness.
There are many legal benefits to a properly negotiated, prepared, and executed postnuptial agreement, including but not limited to determining:
- Which spouse will pay spousal support and for how long (the courts particularly scrutinize any postnuptial agreement that waives or limits post-divorce spousal support)
- Each spouse’s percentage interest in the marital residence
- What assets will remain the property of each spouse if there is a divorce
- Who is responsible for which credit card debts, liabilities, loans, etc.
- Who owns the business or other investment property
Negotiating a postnuptial agreement may seem simpler and less taxing than a prenuptial agreement. Although this may be true, postnuptial agreements do bring their own unique difficulties to the negotiation process.
Under California law, upon marriage, each spouse has a fiduciary obligation to the other. Both spouses have a duty to act for the benefit of each party involved and in utmost good faith. Neither party is permitted to take advantage of the other. This means that postnuptial agreements are given special scrutiny; any agreement that seems largely unfair or blatantly one-sided may not be enforceable.
For a postnuptial agreement to be enforceable:
- Both parties must be represented by independent legal counsel
- The negotiations and ultimate signatures must be voluntary acts. There can be no threats, deceit, coercion, or undue influence
- The agreement must be fair
- There must have been full and complete disclosure of all assets, liabilities, income, and debts from each party
- The agreement must be signed by both spouses, with their signatures notarized
Postnuptial agreements can be a very important tool in determining your financial future in the event your marriage ends. However, drafting such an agreement can be a very sensitive process. A family law specialist with substantial experience in negotiating these agreements can help ensure that your rights are fully protected and the negotiation is handled with sensitivity. The team at Schoenberg Family Law Group, P.C., is attentive and detail-oriented, diligently ensuring the agreement meets strict legal standards for validity.
More Frequently Asked Questions
Do both parties need a lawyer for a prenuptial or postnuptial agreement?
Yes. California law requires each party to have independent legal counsel to ensure the agreement is fair, valid, and enforceable.
Can a postnuptial agreement be as strong as a prenuptial agreement?
Yes—if it’s prepared with the same care and meets all legal requirements, a postnuptial agreement can offer strong protections, though courts review them closely for fairness.
Are these agreements only for couples with significant wealth?
No. Prenuptial and postnuptial agreements are useful for any couple who wants to clarify financial rights and responsibilities before or during marriage.
What happens if we don’t have one of these agreements?
Without an agreement, your property and debts will be divided according to California’s community property laws, which may not align with your preferences.
Can these agreements cover more than just property division?
Yes. They can address spousal support, business interests, life insurance, and other financial matters important to both parties.
How long does it take to prepare a prenuptial or postnuptial agreement?
Timeframes vary, but starting early allows for careful discussion, full disclosure, and the required waiting periods to ensure the agreement is enforceable.
Speak with an Attorney
Before deciding to sign a prenuptial or postnuptial agreement, it is important to have an open, honest, and sensitive conversation with your partner about whether such an agreement would be right for you both. After you reach a decision, it is imperative that you contact a lawyer with experience in crafting these contracts.
The dedicated and experienced team at Schoenberg Family Law Group, P.C., can help you navigate the delicate process of drafting a prenuptial or postnuptial agreement that addresses your unique needs and goals as a couple. We are skilled in handling complex financial issues, including business and corporate interests, intellectual property, pensions and retirement plans, stock portfolios, and real estate holdings. We offer knowledgeable and thorough advice, strategic guidance, clear communication, and great thoughtfulness in drafting agreements that best protect our clients’ rights and interests.
