A prenuptial agreement or premarital agreement is a contract couples enter into before marriage that sets forth each party’s property and debts prior to marriage and specifies what each party’s property rights will be in the event of divorce, separation, or death.
Prenuptial agreements are no longer used by the wealthy alone. Couples of more modest means are employing prenuptial agreements for a variety of reasons, including but not limited to:
- Today’s delayed marriages mean partners are entering marriages with property and financial assets to protect, and a prenuptial agreement makes protecting these assets this possible
- One partner has children from a previous marriage, and a prenuptial agreement can ensure that spouse’s separate property goes to their children
- Having a prenuptial agreement in place saves the time and frustration of an extended court battle over assets at the end of a marriage
- A prenuptial agreement can protect one partner from the debts of another partner before entering a marriage
What Happens Without a Prenuptial Agreement?
Without a prenuptial agreement, California community property law determines marital property and debt division during a disputed divorce. Community property law holds that marital property, property acquired during the marriage, is divided equally upon divorce.
Community property can include an interest in separate property, property owned before the marriage or acquired by gift or inheritance when there were marital efforts to improve, enhance, or contribute to that separate property. A prenuptial agreement can provide that one spouse never acquires an interest in the other spouse’s separate property.
Without a prenuptial agreement, separating separate and community property can require the use of forensic accountants to trace dates of purchase, purchase prices, contributions, and increases or decreases in value over time. The cost of forensic accountants in high-asset cases can run into the thousands or even millions of dollars.
What a Prenuptial Agreement Cannot Do
In California, there are specific provisions and stipulations disallowed from a prenuptial agreement by law. These include, but are not necessarily limited to:
- Any provisions for child custody or child support;
- The right of a future spouse to share in an ERISA governed employee benefit plan;
- Anything illegal or against public policy;
- Penalties upon divorce for fault during the marriage; and
- Any agreement altering the relationship duties of marriage.
For more information on permissible provisions in prenuptial provisions in Los Angeles or assistance with interpretation of a California prenuptial agreement, contact Fernandez & Karney.
At Fernandez & Karney, our Los Angeles prenuptial attorneys believe that prenuptial agreements are the smart choice for marrying couples who want to protect their separate property during a marriage. Our Los Angeles attorneys assist clients in the drafting, review, and litigation of prenuptial agreements as well as issues related to postnuptial agreements.
Call Fernandez & Karney today to schedule a consultation and learn more about drafting a a prenuptial agreement that meets your exact needs and exceeds your expectations. We offer high-quality legal solutions for complex, high-asset cases, and focus on actions that get results for you.