Prenuptial Agreements

What Are Prenuptial Agreements and Do I Need One?

Before marriage, a written contract called a prenuptial agreement may be created. This agreement usually includes the property each individual owns and specifies what each person’s property rights will be after the marriage. The Uniform Premarital Agreement Act (UPAA) has applied to CA prenups since 1986.

Do I Need a Prenup?

1. If you were previously married with children and want to guarantee separate property to those children will be passed to them when you’re deceased, a prenup can be used. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse’s property, leaving much less for the children involved.
2. A couple may also want to use a prenup to clarify their financial rights and responsibilities during marriage.
3. Prenups may also prevent any arguments in a divorce. Specifications of how property will be divided will be made, and whether or not either spouse will receive any allowance.
4. One can also get protection from debts. Prenups can be used to protect spouses from each other’s debts.

What Are the Requirements For Prenups?

General contract law applies to prenups, meaning there must be:

• valid consent (an individual must have the mental capacity to consent)
• consent may not be fraudulent, or be the result of inappropriate influence.

Additionally, per the UPAA, prenups made after 2002 will only be enforced if the spouse:

• received complete information about property and finances;
• had seven days to review the prenup; and
• was represented by a lawyer (there are some exceptions to this requirement in the UPAA).

What Will Happen If I Don’t Make a Prenup?

If a prenup isn’t made, your states’ laws will determine who owns the property during marriage and what happens to it at the time of death or divorce. State law may even have a say in what happens to some of the property you owned before you were married. In California, each spouse or partner owns one-half of the community property. And, each spouse or partner is responsible for one-half of the debt. Community property and community debts are usually divided equally.

In the absence of a prenup, a spouse usually has the right to:

• share ownership of property acquired during marriage, with the expectation that the property will be divided between the spouses in the event of a divorce or at death;
• incur debts during marriage that the other spouse may have to pay for; and
• share in the management and control of any marital or community property, sometimes including the right to sell or give it away.

Every state permits them, although a prenup that is judged unfair or otherwise fails to meet state requirements will still be set aside.

However, because courts still look carefully at prenups, it is important to negotiate and write up an agreement in a way that is clear, understandable, and legally sound. If you draft your own agreement, you’ll want to have separate lawyers review it and at least briefly advise you about it — otherwise a court is much more likely to question its validity.

Please contact the Santa Barbara County Bar Association Lawyer Referral Service to find a lawyer to help – (805) -569-9400.