Nobody wants to imagine their marriage won’t last. Yet you cannot predict the future; things can happen and people can change in ways you would not expect. As high as the divorce rate is in the US, it is wise to prepare yourself for the possibility of a Palo Alto divorce– no matter how slim it may feel – with a legally binding agreement that will protect your rights.
A lawyer can help. If you are interested in pursuing a prenuptial or postnuptial agreement in Palo Alto, California, contact the lawyers at the Schoenberg Family Law Group, P.C., for a consultation. We can help you create a strong and valid premarital or postmarital agreement that will fully protect your rights should your marriage ever end.
What Is a Prenuptial Agreement?
A prenuptial agreement (commonly shortened to prenup) is a contract entered into between two parties before they get married. This contract states that both parties agree to the financial arrangements made in the document should the marriage ever end in divorce. The point of a prenup is to prevent a long, difficult financial battle during a divorce case by planning out the division of the couple’s marital estate ahead of time, when the couple is still amicable and can more easily agree on these matters. A prenuptial agreement will automatically go into effect when the couple marries.
What Is a Postnuptial Agreement?
A postnuptial agreement (postnup) essentially serves the same purpose as a prenuptial agreement. It also plans out a couple’s finances in advance, before the couple ever thinks about getting divorced, to make property and asset division easier in the event of a dissolution of marriage. However, a postnuptial agreement is entered into after marriage, not before. A postnuptial agreement goes into effect once both parties sign the legal contract.
Is a Prenup or Postnup Right for You?
Under California’s property division law, all property classified as community property will be divided in half if a divorce case goes to trial. Any assets, properties, income, savings and debts acquired during your marriage will be split 50/50, regardless of whether this is fair for both parties or not.
This community property law is the main reason couples use prenuptial and postnuptial agreements in California – so they can have more control over how property is divided in a divorce. A prenuptial or postnuptial agreement can provide peace of mind and financial protection.
How to Create a Valid Prenuptial or Postnuptial Agreement in Palo Alto, CA
It is critical to ensure the validity of your prenuptial or postnuptial agreement. Otherwise, you may think you are protected in a divorce case, but you won’t be when it comes time to actually enforce the agreement. In California, the Uniform Premarital Agreement Act imposes specific requirements on prenuptial agreements. This act states that a valid prenuptial agreement must check the following boxes:
- Executed and entered into voluntarily
- Signed by both parties
- Both parties had adequate knowledge of its terms
- The party signing the agreement was represented by independent legal counsel or expressly waived this right
- The signing party had at least seven days to seek a lawyer before signing
Most of these rules also apply to postnuptial agreements. However, postnuptial agreements are placed under more intense scrutiny, since, once married, the spouses have a legal duty to act for the benefit of one another and with the utmost good faith. If a postnup contains any provisions that appear unfair to one party, the courts may not enforce the agreement. It is important to work with a family attorney when creating either type of agreement, to ensure its validity and enforceability.
What Can’t a Prenuptial/Postnuptial Agreement Include in Palo Alto?
Even if all of the above-mentioned rules have been followed in creating a prenuptial or postnuptial agreement, it may be unenforceable if the contract contains unenforceable terms. In California, a legally binding prenuptial or postnuptial agreement may not be enforced if it has unconscionable terms or provisions. These are terms that are substantially unfair to one party or unenforceable. Despite a party understanding these terms at the time of signing, the courts in Palo Alto will not enforce them.
- Terms determining child custody or child support
- Terms deciding a child’s religion, education or health care
- Unreasonable terms, such as a wife having to provide a male heir
- Personal terms, such as those controlling one spouse’s appearance
- Terms that would alter the relationship duties of marriage
- Terms penalizing one spouse for being at fault for a divorce
- Terms that promote or encourage a dissolution of marriage
- Terms requiring one spouse to commit or follow along with illegal activity
- Terms that go against public policy
Most prenuptial and postnuptial agreements focus on property division. Property division, including the classification of separate vs. community property, is the most common reason couples create prenup and postnup agreements in California. A prenup or postnup may also contain alimony terms, however, as long as they are not extremely unfair to one party.
Speak to an Prenuptial and Postnuptial Attorney in Palo Alto Today
At the Schoenberg Family Law Group, P.C., we know a prenuptial or postnuptial agreement is a personal matter between you and your spouse. However, we also recognize the immense importance of bringing your agreement to an attorney before finalizing anything. A prenup or postnup has the power to control your financial future in the event of a divorce. Do not treat it lightly.
Speak to our attorneys in Palo Alto, California about a prenuptial or postnuptial agreement for more information before signing anything. We will explain California’s related laws and help you create a legally binding contract that fully protects your rights. Request your consultation online or by calling (866) 963-8623 today.