Prenup: Defined

Prenuptial agreements (also called premarital or antenuptial agreements) are contracts between two people who are planning to get married.  

It is worth saying that prenups are not only for people with an abundance of assets. A prenup can, for example, shield you from later having to take responsibility for your spouse’s debts.  Premarital agreements can also help to prevent quarreling in the event of a decision to divorce. 

With a prenuptial agreement, you can: 

• Sleep well knowing that your assets are passed on how you would like them to be
• Have a document in writing that verifies the ownership of your property, that of your spouse and all property that is jointly owned
• Have a detailed inventory of each spouse’s separate property prior to the marriage
• Evade any disagreement about the legal ownership of any property, assets and income gained during the marriage . 
• Have instructions in place regarding how you and your spouse’s finances should be dealt with under a variety of circumstances. 

With no prenup in place, if you divorce or upon the death of one or both of you, the way in which assets are handled is subject to the present divorce and probate legislation.

Can I Do a Prenup Without a Lawyer?

As with any contract, you can indeed do a prenup without a lawyer.  There are templates for premarital agreements.  Some of the templates available are said to have been reviewed by licensed lawyers.  That fact notwithstanding, can you do a prenup that would be enforceable under the laws of your jurisdiction?

Various jurisdictions have their unique statutory and case law with regards to what is and is not permitted in a prenup.  Only a well-versed attorney would know and understand what these are to incorporate into your prenup.

Prenups in California can be different from marriage and divorce legislation

The Family Code of the state of California lays out the rights and obligations of spouses. Some of these marital rights can be negotiated and even circumvented by an agreement. 

There can also be terms in the contract for how to make decisions in the case of the untimely death of a spouse.

Certainly, prenups in California can be different from marriage and divorce legislation.

How Can I Know for Sure That My Prenup is Valid?

Basically, for your prenup to be valid: 

1. It must be in writing, 
2. It must have been voluntarily signed by both parties
3. There must have been a wedding uniting the parties who signed.

If the marriage is annulled, any existing prenuptial agreements may prove impossible to enforce, or enforcement may only be minimal.

Limitations of the Authority of a Prenup

Here are a number of important limitations to the scope of a prenup in California:

• Lifestyle Clauses in Prenups While they can make for fascinating conversation, lifestyle clauses that, for example, layout terms related to sex between the spouses or those limit visits from in-laws normally are not enforceable by in a court of law.
• Alimony/Spousal Support – Unfairly Waived Support Payments The court will refuse to enforce clauses in the agreement that limits on spousal support if the spouse whose rights are reduced or revoked by the contract had no opportunity to retain their own legal representation at the time they signed.
• Alimony/Spousal Support – Unconscionable Waiver Of Payments If a judge sees the waiver of spousal support as unconscionable, he or she can opt against upholding it and award the support. 
• Child Support is Off Limits The California Code states that “[t]he right of a child to [receive] support may not be adversely affected by a premarital agreement.” 
• Contractual Obligation to Commit a Crime A contract that obligates the one or both of the parties that signed to commit crimes or otherwise violate laws or public policy cannot be deemed valid. 

The Uniform Premarital Agreement Act

For access to all of the applicable statutes relating to prenups in the state of California, please see The Uniform Premarital Agreement Act.

Defining Prenup

A prenuptial agreement (aka antenuptial, premarital agreement or prenup for short) is a contract between two people who are about to get married.  

Why Should I Put a Prenuptial Agreement in Place?

Prenups aren’t just reserved for wealthy people. In a Rocketlawyer.com article, a prenup is said to have the power to shield you from responsibility for your spouse’s debts and even forestall arguments in divorce. 

In a prenup, you would: 

• Decide how your assets are passed on 
• Document property ownership details
• List out the separate property that each of you owns
• Determine the ownership of the real property, assets and income that are gained in wedlock. 
• Make decisions on how you and your spouse’s finances should be handled in various scenarios. 

If you don’t have a prenup, and you divorce or one of you dies, the subsequent distribution of assets will be decided by the divorce and probate statutes where you live or where you were married.

At Times, prenups in California differ from marriage and divorce laws

California legislation dictates the respective rights and obligations of spouses. Nevertheless, certain marital rights can be renegotiated and modified by contract. Engaged couples can decide in advance the terms of their property shares during their marriage or, if it should come to it, their divorce.  

Terms can, for the eventuality of the unfortunate death of a spouse, also be spelled out in the contract. 

At times, prenups in California differ from marriage and divorce laws. Agreed upon terms can diverge from the present default procedure under the state legislation.  

How Can I Be Certain That My Prenup is Valid?

For a prenup to be considered valid: 

1. It must be in writing, 
2. It must be signed by both spouses voluntarily
3. The prenup is only valid after the date of marriage.

If the marriage gets annulled, your prenup could in actuality be impossible to enforce, or enforcement may only be possible to a limited extent.

Undue Influence in Prenups
Because of the special, intimate kinship between husbands and wives, any discussion of a prenup can raise the suspicion of undue influence. This presumption could prove advantageous to either party who may want to challenge the legal validity of the prenup down the line.

The California Family Code states that the intimate, fiduciary connection between spouses “imposes a duty of the highest good faith and fair dealing on each spouse.” 

Family court judges have the power to sanction any violation of fiduciary obligation by awarding the whole value of an undisclosed asset in a divorce to the spouse that was deceived about it. 

The Limits of a Prenup

Important limitations exist to the authority of prenups:

• The California Family Code says about Child Support: “[t]he right of a child to support may not be adversely affected by a premarital agreement.” 
• A judge will only enforce clauses in a prenup that limit spousal support if the spouse whose rights have been diminished had the opportunity to retain their own legal representation at the time they signed.
• If the courts find that the prenup contains waiver of spousal support unconscionable, they can decide not to uphold it and award support to the affected party. 
• Any agreement that necessitates that one or both of the future spouses commit crimes or otherwise violate laws or public policy cannot be valid. 
• Certain life-style clauses, such as those addressing non monetary details like visits from in-laws or how often you have sex usually cannot be enforced by courts.

Can You Get a Prenup Without a Lawyer?

The short answer is yes, you can get a prenup without a lawyer.  As with any contract, it is possible to create a prenuptial agreement on your own.  Templates that you can use for creating a prenup can be had for little or no money.  The real question is whether or not you’re getting a prenup that can be enforced under the laws of the jurisdiction you’re in. 

Be advised that every jurisdiction has different statutory and case law that pertain to what is and is not allowable in prenups, and only an experienced attorney would know and understand what these are to advise you.