California Divorce Law: What You Need to Know about Prenups and Postnups
Q: I am getting married. I want to explore the possibility of getting a prenup, but I don’t want to insult my future spouse. How should I go about this topic?
A: It is tough to rid the stigma of a “prenup.” You hear in rap songs. It signifies a certain je ne sais quoi that most people shun. However, in this century, I advise my clients of the following: Prenups are like car and life insurance. No one likes to think about sudden or accidental death. But it happens, just like divorce.Prenups are similar to insurance. Though it may not protect you from all problems -however, if properly drafted, it will certainly limit them. In addition, you should inform your future spouse that prenups which “promote” divorce are unenforceable. You should speak with competent counsel for information on what “promotes” divorce. Finally, marriage is a legal union of two people. The characterization and distribution of assets and debts are indispensable parts of this beautiful legal equation. That’s something worth discussing, and finalizing on paper, isn’t it?
Q: What is the point of having a prenuptial agreement?
A: This is a fairly complicated question, but I will try to simplify it with my three P’s: Protection of property. This includes waiving community property rights, including real property, businesses, intellectual property and retirement plans. Providing of (or not) spousal support. You can opt to waive spousal support (alimony). Preservation of separate property and debt. Making sure what was yours is always yours. Making sure what he/she owes is always his/her debt.
Q: What can go into the prenup?
A: A lot of things. Under the Family Code in California, you can include the following:
1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
4. The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
5. The ownership rights in and disposition of the death benefit from a life insurance policy.
6. The choice of law governing the construction of the agreement.
7. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
Q: What can’t go into the prenup?
A: In California, limitations on child support. Custody. Religion. Promotion of Divorce. Damages for cheating. Technically, you can put these provisions in the prenup. But they are unenforceable, so what is the point?
Q: Is there a deadline for entering into a prenup?
A: Yes. There is a seven (7) calendar day rule in California. Ask your attorney.
Q: What is a post-nup?
A: Just like it sounds, a postnup is an agreement entered into after the marriage has happened.
Q: Why would I get a postnup?
A: Same reasons. The three (3) P’s above.The difference between a prenup and a postnup is a marriage in between. This is significant because marriage imposes strict fiduciary requirements on spouses. As such, postnups will be more carefully scrutinized and easily challenged then prenups. It is of utmost importance that you hire an attorney to prepare a postnup for you.
Q. I am interested in learning more about the law, and I don’t want to pay a lawyer. Where can I be educated?
A: I recommend reading Family Code sections 1600 et seq., also known as the Uniform Premarital Agreement Act in California. I find it very interesting.
Q: Do we need lawyers to do a prenup?
A: Yes, and make sure they are competent lawyers. Remember the first rule: You get what you pay for. Also, please note that if you are including provisions waiving spousal support, you will need to have counsel. Ask your lawyer.
