How Much Can a Prenup Protect You?
Most couples don’t think about prenuptial agreements when getting married. With all the excitement and happiness surrounding a marriage, it may seem strange to consider how your money will be divided in a divorce. But what happens if you or your spouse do not agree with the prenuptial agreement in the event of divorce? This is one of the biggest issues you will face, and the reason why it is so important that you work with a qualified prenuptial agreement attorney and that both parties have independent counsel. You have to make sure that you reach a fair agreement that helps both parties move on in case of a divorce and that one of the future spouses is not just doing it to placate the other and will look to start a legal battle if the marriage ends in divorce.
How Does a Prenuptial Agreement Work?
Under the Uniform Premarital Agreement Act, which was enacted in 1986 in California, prenuptial agreements are automatically effective once a couple gets married. In essence, it’s a contract you both sign which designates how money and property will be divided if you divorce.
A Prenuptial Agreement Can
- Divide finances and assets between the spouses, as long as it is not “unconscionable”. For example, if the arrangement would leave one spouse unable to support themselves financially, it would not be considered conscionable.
- Change the nature of separate or community property (separate is acquired before the marriage, community is acquired after). For example, a prenuptial agreement can turn separate property into community property, or vice versa.
- Waive the rights to alimony, spousal support, or inheritance, as long as the waiver does not affect children.
A Prenuptial Agreement Cannot
- Include any terms that affect the best interest of the couple’s children. For example, you cannot waive the court’s right to make decisions in the best interest of your child.
- Waive or lessen child support. Child support will always be required by law. You can, however, use the agreement to increase support above what is required by law.
- Generally, a prenuptial agreement that “promotes” divorce will not be enforced. For example, if a spouse will receive a large sum of money or property from the divorce (i.e. it’s disproportionate), it might be considered making the divorce more attractive, and is therefore unenforceable.
What If Your Spouse Wants to Invalidate the Prenuptial Agreement?
There are several ways to challenge the validity of a prenuptial agreement. For example, prenuptial agreements require each spouse to fully disclose his or her finances, assets, and property. Likewise, the agreement must be reasonable and fair, and signed by both parties. Lastly, each spouse is required to have at least 7 days to read and agree to the contract before signing (to give him or her enough time to consult with an attorney).
Prenupman strongly recommends that both spouses have their own counsel. It is too easy to use that as a loophole if the lower earning spouse wants to fight the agreement, so that the higher earning spouse may end up paying thousands of dollars just in legal fees even if the court upholds the agreement. The Department of Child Support Services collects money from the higher earning spouse and gives it to the lower earning spouse. The state collects a fee and uses the money to employ people. Despite the name, they also collect spousal support and will garnish your wages, confiscate your assets or get you sentenced to jail if you don’t pay. They don’t care about any mitigating circumstances unless you can prove it like it’s a criminal case. If you show the judge your pink slip or severance agreement, they assume you forged it and you actually have to subpoena records from your former employer and a witness to prove that you are telling the truth. If the support recipient lies about not receiving support, there are no consequences. You have to keep a record of payments to prove that you paid, and once you have done so, the matter will go away, but the support recipient is not punished in any way. It’s a biased and corrupt system that you want to stay away from. Having a high quality prenuptial agreement in place before you tie the knot is the ONLY thing that can protect you from some of the worst consequences of divorce.
If any of the conditions above (about what a prenuptial agreement cannot do) haven’t been met, the agreement is invalid. Aside from the terms of the agreement, the court can also invalidate it based on the manner in which it was signed. For example:
- If you or your spouse signed the agreement under duress (by force, manipulation, or out of compulsiveness). Or, if one of you was misrepresented (fraud).
- If you or your spouse did not have the mental ability to consent at the time of signing.
- Similarly, if you or your spouse was highly intoxicated, under the influence of certain drugs, or was ill, the court might consider it mental incapacitation.
- Additionally, California requires each party to have an attorney present when signing, unless the use of an attorney was waived in a separate document. If the agreement was signed without an attorney, and without a waiver, it can be considered invalid.
We do not recommend signing the agreement without both parties being represented by an attorney. It is too easy to use that as a loophole and you have to remember that the family court system is BIASED AGAINST MEN.