Understanding Premarital Agreements
Premarital agreements, more commonly known as prenuptial agreements, are written contracts between couples allocating what is to become of personal assets and/or support rights if the marriage is to end in divorce. These agreements are extremely important as they solely determine the distribution of a couple’s property. They should be flexible and address the couple’s present and future needs.
Premarital agreements work similarly to wills. They clearly stipulate what exactly is to become of a married couple’s property upon divorce without having the court decide. For example, if a couple owns a house prior to a marriage, the agreement will list which spouse will remain owner, or if other arrangements will be made with the home. The agreement must clearly take into account the various factors that may affect determination, such as:
- If the owner of the property allocates funds to uphold and maintain it, will the community property be eligible for any interest for those efforts?
- What if the non-owner of the property does the aforementioned instead?
- If the owner of the property allocates funds to uphold and maintain separate property, will the spouse be eligible for reimbursement of those funds used?
- If a loan was taken out to maintain separate property, will the community property collect interest?
In order to prevent any confusion regarding these scenarios, it is important to address them in the agreement. Simply acknowledging that the property shall remain the owner’s will not suffice. It must be addressed in a thoroughly detailed manner.
A premarital agreement also considers the following provisions:
- Premarital debts
- Living expenses
- Expenses for children of former marriages
- Life insurance for one or both spouses
- Payment of taxes (separate and joint earnings)
- Determination of either written or oral amendments
- Determination of property purchased under joint names
- Determination of state laws applying to the agreement
A premarital agreement can be amended at any time due to the high likelihood the couple wishes to change a stipulation at some point in the marriage. These changes may be a result of the spouses’ changing age, income, family size, etc.
In 2000, California’s Supreme Court upheld In re Marriage of Bonds, which stated that the Uniform Premarital Agreement Act would make premarital agreements much less difficult to enforce. It also stipulates that both parties, by agreeing, should be fully aware of any apparent unfairness the document may present.
In 2002, SB78 was enacted into California law by the state legislature. The law placed procedural requirements and restrictions on premarital agreements. These requirements and restrictions include:
- Allowing the party to seek legal counsel for the purpose of advisement prior to agreeing to the stipulations within the agreement.
- Allowing the party to whom the agreement is being presented at least seven calendar days to review and study said agreement before signing. The seven day window allows the party to seek legal counsel.
- Allowing the party to understand the effects of the agreement which includes any rights or obligations he/she is potentially relinquishing, unless waived.
- Allowing the agreement to be presented in the language the party is proficient in to avoid misunderstandings.
- Allowing the party to be fully aware of any and all assets and/or debts through full disclosure. Neglecting to stipulate said assets and/or debts will be at the fault of the party putting forth the agreement.
It is important to remember that premarital agreements are not appropriate for all couples preparing to marry. A large number of young couples with little to no assets and valuable property may find a premarital agreement unnecessary. However, for those entering a second marriage or are of older age may find an agreement convenient as it avoids lengthy litigation determining what will become of assets. It is also suggested to form an agreement to prevent community property claims by the other spouse. These agreements tend to be requested by the party whose wealth and property claims outweigh the other’s. However, the wealthier party may not wish to disclose the value of their assets or property and may avoid an agreement altogether.
The Interest Of Children From A Former Marriage
Regarding the children from a spouse’s previous marriage, a party may formulate an agreement to ensure their children receive his/her assets rather than allowing the court to determine where such assets are to be distributed. On the other hand, if a spouse has outstanding debts or tax liabilities at the time of marriage, an agreement can ensure that if divorce should occur, the other spouse will not incur these debts by protecting their estate and property.
A family law attorney from Fischer & Van Thiel will assist you to the best of their ability in formulating a premarital agreement. For more information, contact 858-935-6211.
Mike's Top FAQs About Family Law401K plans and divorce
401K plans and divorce
If my spouse waives his right to my 401k plan, is there any circumstance that the court will still award him half or a portion of my 401k plan?
It is theoretically possible that a court can disturb an agreement to waive rights to property, but it is unlikely. Courts will generally treat agreements as contracts, and thus are likely to strike an agreement only if it is unconscionable, induced by fraud, undue influence, duress or is against public policy. The judge cannot “reject,” nullify, or modify the provisions of an agreement merely because of his or her personal belief that a different arrangement should be made.
A marital settlement agreement, or MSA, can be used as a contract between spouses regarding the division of property that would otherwise be subject to community property laws. An MSA is subject to general contract laws, meaning that it can be found invalid if terms are against public policy (which includes, but is not limited to, (a) abrogating the statutory child support duty or impinging on the court’s jurisdiction to award child support, (b) limiting the court’s exercise of child custody jurisdiction, (c) “altering legal relations,” (d) “promoting dissolution,” and (e) providing for “fault”-based penalties at marriage dissolution) . The MSA can also be found invalid if entered into as a result of fraud, duress, menace, undue influence, or other factors which may make the agreement void or invalid. Generally, an agreement such as the MSA is favored. Hence, if there are no legal or equitable grounds for rescission or reformation it is binding on the parties and the court without express approval.
Can I get child support in California if I am not getting a divorce?
I have been separated for two years from my wife, and my kids live with me. Can I get support without filing for divorce in California? We have not been living together since our separation, and even file taxes separately.
You do not need to file for divorce in order to get support. You will need to go through the court to obtain a child support order so you will have to file something. You can contact your local Department of Child support services office and they can help you get started. So while you do not have to file for divorce, you can file for a legal separation. The court needs to know that you two have in fact separated and there is one parent who is the full time provides and therefore in need of support.
Can I move out with my daughter before the divorce in California?
My wife and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living. Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?
Yes, you can move out with your daughter, assuming there are no court orders already in place regarding custody and visitation. It is important to maintain frequent and continuing contact between the child and the other parent. When the court makes custody and visitation orders they will look highly upon the parent who facilitated contact with the child and the other parent. It is important to make the transition as easy as possible for the child.
Question: Is there a statute of limitations on owed child support?
An ex lover of mine (20 years ago) just approached me out of nowhere about getting tested to see if her son is my child. He is 20 and I live in California. I am trying to find the statue of limitations for child support if indeed I take the test and the child turns out to be mine.
Unless the mother has made a claim for child support with the welfare office or her local Department of child support services office, they cannot now collect from you on child support. Since he is no longer a minor child now that he is emancipated, there are no obligations for child support. You can get tested to see if you are the father, but you do not have to.
If the state has paid out welfare for the child, and it turns out that you are the Father, there can be some potential liability there with having to pay back the state the money they paid out. If this is not an issue, then they cannot now ask you to pay for child support.
Is the opinion of the child ever taken into consideration in a divorce?
Typically the Courts will take the child’s opinion into consideration at the age of 12. There is no set age, it depends on the maturity level of the child. If a child is of sufficient age and capacity to form an intelligent preference to custody the court can take it into consideration. It is important to note that all judges will rule for what is in the child’s best interests whether it be for the mother or the father.