In all the positive emotions leading up to Marriage or a Domestic Partnership, the notion of a Prenuptial Agreement can be an incredibly delicate topic to broach. However, a Prenuptial Agreement is a smart, practical move intended to provide a road map to divorce 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.
In a world where planning for the worst in highly encouraged, entering into a Prenuptial Agreement in a prudent move. At Schoenberg Family Law Group, we recognize that creating a Prenuptial Agreement can be a difficult and emotional experience for people getting ready for marriage. When negotiating a Prenuptial Agreement, you are trying to balance the creation of a meaningful and long lasting intimate relationship while at the same time contemplating how assets and liabilities will be divided in case of divorce.
We also understand that oftentimes if you wait until later, you and your partner may be too estranged, and angry, to rationally undertake the task of negotiating a resolution of your differences after the marriage fails. Therefore, identifying the property brought into the marriage/domestic partnership, how income and assets acquired during the marriage/domestic partnership will be characterized, and who has the legal right to control separate property allows you certainty as you embark on your journey.
A prenuptial Agreement protects each spouses’ 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 avoid ligation between the spouses’.
It is critical, as you begin working with us as on such an Agreement, to know that:
- Both parties must be represented by independent legal counsel
- There must be full disclosure of all of the 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 is fair and does 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, that 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 provoked and inflamed once the dissolution of the relationship becomes a reality. An improperly drafted Agreement often leads to even more litigation in the future and therefore we strongly recommend that clients’ hire our Firm as we have the experience and compassion to ensure that the Premarital Agreement is through, accurate and most importantly stand the test of time and be deemed legally binding should a party challenge its enforceability at a later date.
At the Schoenberg Family Law group our team has a wealth of experience in competently and thorough addressing complex financial issues including business and corporate interests, pensions and retirement plans, stock portfolios and real property. We offer knowledgeable and thorough advice to clients who wish to negotiate a Premarital 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.
A Postnuptial Agreement is similar to a Prenuptial Agreement; however, this agreement is executed after the marriage. A post Martial Agreement serves as a viable alternative for spouses who married without a Prenuptial Agreement. It offers married couples an opportunity to protect each individual’s assets and financial health in the event of a legal separation or Divorce.
Although post martial agreements largely circumvent emotionally sensitive hardships associated with negotiating a Prenuptial Agreement, it comes with its own set of difficulties and complexities.
The postnuptial agreement outlines how the couple’s income, assets, and liabilities are to be addressed (and divided) in the event of a separation or a divorce. You can set forth how separate and community property which has been acquired before and during the marriage will be divided. However, under California law while the prenuptial agreement is assumed to be valid (so long as you comply with the requirements discussed earlier), a California postnuptial agreement is assumed invalid unless there is careful adherence to all requirements as to representation, disclosure, and fairness.
There are many reasons a couple may decide to enter into a postnuptial agreement. You might not want your spouse to be part of your new business enterprise or business dealings. This may be your second marriage and you have children from a previous marriage you want to protect or support. You might want those children to receive certain assets you acquired before you entered into this marriage but just did not have the time, before the wedding, to meet with us and have created and signed a prenuptial agreement.
Further, a spouse might have had an affair; and, there is an understanding that the other spouse will remain married, even though there was an affair, if and only if a postnuptial agreement is signed. In other cases one or both of the spouses may come under drastic changes (positive or negative) in their financial situation such as a spouse suddenly coming
into a large sum of money or facing financial ruin. The reasons and possible scenarios as to why a postnuptial agreement might be appropriate are limitless.
There are many legal benefits, to a properly negotiated, prepared, and executed postnuptial agreement including but not limited to the following:
- Which spouse will pay spousal support and for how long (the courts scrutinize with particularity any post nuptial agreement that waives or limits post-divorce spousal support)
- What is the percentage interest of each spouse in the marital residence
- Which property will remain the property of each spouse if there is a divorce
- Who is responsible for which credit card debts, liabilities, loans, etc.
- Is there to be life insurance and if so on whose life and who pays the premiums
- 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 with the utmost good faith. Neither party is permitted to take advantage over the other. This means that post nuptial agreements are given special scrutiny and any agreement that seems largely unfair of blatantly one sided may not be seen as enforceable.
In order for the postnuptial agreement to be enforceable, the following must occur:
- 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 at all
- 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 an incredibly important document that largely determines your financial future in the event your marriage terminates and drafting such an agreement can be an especially delicate process. In our view, only a family law specialist with substantial experience in negotiating these agreements is equipped to ensure that you and your rights are fully protected. We excise extreme attention to detail and are incredibly meticulous throughout the negotiation process to ensure that the agreement will be deemed valid.
What Is a Prenuptial Agreement?
By 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 not a guarantee for a divorce.
Simply put, a prenuptial marriage agreement is a notarized and signed contract between two people who are getting married. It determines how a couple will handle their finances and establishes the property and financial rights of each member of the couple in the event of a divorce.
To be valid, a prenup must be:
- Signed before marriage
- Fair for both parties
- Contain full financial disclosure
Many happy couples sign prenups and never end up using them. Prenups are especially popular for people who are marrying for a second time and beyond. Contrary to popular belief, prenuptial agreements are not just for couples who have 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:
- You and your partner’s liabilities, property, and assets
- Important issues regarding your finances and the marriage
- Your goals for the future
It is important that you and your partner are open and honest in your 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?
Prenuptial agreements may not work for you and your future spouse. You may have reservations about the process and what it means. In these cases, it is important to have a 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:
- You can confront sensitive financial matters
- You protect your personal and business assets prior to marriage
- You eliminate battles over finances and assets during divorce
- You preserve family ties and inheritance
- You outline financial expectations prior to marriage
On the other hand, the disadvantages of prenuptial agreements include:
- They can cause friction and tension between you and your partner
- They can seem like a lack of commitment
- They can imply a lack of trust
Prenups can also make it seem as if you’re planning a divorce before the wedding.
Speak with an Attorney
Before deciding to get a prenup, it is important that you speak with your partner about if the agreement would be right for you both. After you reach a decision, it is imperative that you contact a lawyer with experience in prenuptial agreements.
At the Schoenberg Family Law group our team has a wealth of experience in competently and thorough addressing complex financial issues including business and corporate interests, pensions and retirement plans, stock portfolios and real property. We offer knowledgeable and thorough advice to clients who wish to negotiate a Postmarital 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.