Understanding prenups: A brief overview

Generally

Everyone who gets married assumes that there will be no major disputes in their future marriage, and that their marriage will last "till death do us part." But the fact remains, almost 50 percent of all marriages in the United States end up in divorce. Or, to put it another way, things change.

Therefore, any couple who has business or personal assets that they bring into a marriage can probably benefit from a prenuptial agreement. The basic precept of such a contract is the maintenance of an inventory listing the premarital assets that will continue to be regarded as the original owner's property in the event the parties get divorced.

A prenup, in addition to inventorying separate property, can deal with other topics, such as: Future income from one of the party's personal business, inheritance assets, and future spousal support. In general the parties to a prenuptial agreement can basically outline anything they want in the agreement, except (in the case of possible divorce) limit child support, child custody and visitation. Prenups are also worth considering because they can help preserve the expectations of the parties and prevent surprises in a divorce trial.

California statutory law

Every state has different rules governing prenups. Prenups in California are governed by the Uniform Premarital Agreement Act.

Under the Act, a prenup is referred to as a "premarital agreement" and is described as a written agreement between an engaged couple that becomes effective upon the marriage. This section also defines "property," which encompasses, for all intents and purposes, anything of value.

The Act sets out the allowed subject matter of an agreement. In general, any financial issue may be included. Forbidden issues relate to: Children (which includes child custody) and obligations during the marriage (which includes such things as household chores, or how frequently sexual relations are to take place). Contractual provisions relating to spousal support will generally not be enforced if the person whose support is being waived or limited does not have the advice of his or her own attorney before he or she enters into the agreement, or if the provisions are unconscionable (that is, unreasonable or excessive) when the agreement is enforced.

The Act allows a person to revoke or amend the agreement after marriage, following procedures similar to the agreement's creation.

The Act also lists the situations where prenups are unenforceable, which include: Absence of financial disclosure, unconscionability, coercion, and lack of understanding by one of the parties as to what he or she is signing. California also requires that there must be at least seven days between the time when the agreement is first presented to a party and when the parties sign the agreement.

Conclusion

If you are planning to get married, even if you believe that the marriage will last forever, it is a good idea to consider creating a premarital agreement to protect your assets and, if you decide to do so, it is strongly recommended that you contact an experienced family attorney, who will advise you as to the exact legal requirements for such an agreement.