US Law Regarding Prenuptial Agreements
Prenuptial agreements, also known as premarital agreements, are becoming much more common in the United States due to the fact that they increase the likelihood of a speedy and affordable divorce process. This type of agreement specifically lists the assets that soon-to-be spouses will keep in the event their marriage ends, without having to engage in a potentially lengthy and contentious legal battle. Prenups are currently recognized in all 50 states, but must adhere to the following five guidelines in order to be valid.
They Must Be Written
As with any contract, a prenup must be written. The soon-to-be spouses must both sign the agreement in order to make clear to the court that they understand and agree to the stipulations listed therein. Although oral prenups can be formulated, they are generally not recognized in most American jurisdictions.
They Must Be Formed Voluntarily
Not unlike a will being formulated and signed voluntarily by a testator of sound mind, a prenup must be created in a similar manner. These agreements are very sensitive when it comes to the agreed participation of both parties and can become null if it is proven that one or both parties were forced into said agreement.
They Must Include Full Disclosure By Both Parties
In order for the agreement to be valid, both parties must include all available information regarding the assets listed therein. The same goes for any liabilities or income. Proof of such information must be included in the agreement.
They Cannot Be Unconscionable
If a prenup has been proven to significantly favor one party over the other, then it may become invalidated. For example, an agreement that states that one spouse will receive no property, alimony, or other assets in the event of a divorce is likely to be found unconscionable.
They Must Be Formulated By The Parties Themselves
A prenup must be formulated by the future spouses themselves, not by any other party. Although it is legal to request the services of an attorney who is knowledgeable in the formulation of such documents, the stipulations themselves must be made by the two parties whose interests the contract reflects. The two must then sign the document before a notary public.
Furthermore, the prenup may include a “sunset provision”. This type of provision will nullify the agreement after a specific date. The same may happen in the event of the birth of a child. However, the couple may renew the document if they so wish.
Ensure that your prenuptial agreement is legally binding by requesting the assistance of an attorney from the law office of San Diego’s Fischer & Van Thiel, LLP. Contact one of our attorneys at 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.