With the high rate of divorce in California and other states, some people look for ways to deal with the unwelcome but highly likely possibility that their marriage will end in a divorce. A prenuptial agreement is usually the legal vehicle of choice for most couples. Through a premarital agreement, future spouses contract with each other concerning their property and spousal support rights. Rather than trust to California’s default rules concerning things like community property, separate property, division of property, and spousal support, they make an agreement about how they want their property to be treated and divided, and the duration and amount (if any) of spousal support. In many ways, a prenuptial agreements (also called a premarital agreement or “antenuptial” agreement) is like a buy-sell agreement made between business partners at the time a business is formed. Business partners often put a plan in place against the possibility that their partnership will fail, and they generally look toward establishing a fair price at which a partner may be “bought out” of their interest in the company. These agreements are usually made when the partners are optimistic and of a mind to be fair, even generous with each other. In a similar way, prenuptial agreements can be thought of as buy-sell agreements between future partners/spouses that will define the partners’ exit strategy in the event of divorce.
While many people view prenuptial agreements as “draconian,” it is probably because the stereotypical image of a prenuptial agreement is one in which one party keeps all of the assets, pays no support, and leaves the other party destitute and on the streets with no alimony to speak of. Well, cases like that get “bad press,” but if a person freely contracts for such an outcome, then they may likely be held to it, absent any special circumstances where they may have been deceived, coerced, or otherwise deprived of making an informed and intelligent decision. That is one extreme example, however. Many people simply wish to keep their separate property separate and want a community estate to grow after marriage. Spousal support can be waived, left to the “default” provisions of California law, or negotiated for some alternative plan. It is important to know that a prenuptial agreement is a contract, and the terms of any contract can be negotiated.
If you and your fiance are considering entering into a premarital agreement, you should hire an attorney to draft it and help with negotiations. Nothing in the law is guaranteed, and prenuptial agreements are challenged in court more often than not. However, having a knowledgeable attorney helping you with the drafting of your premarital agreement should minimize the chance that the agreement will be overturned due to some technical defect.
Should you need assistance with drafting and negotiating a premarital agreement in Orange County, California, please feel free to contact our office.