Important Pre-Nuptial Considerations / by Cassandra Hearn

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Preparing for a marriage and a new life with your partner is a happy and exciting time. Planning for it together is an essential component of a prosperous and successful future. Before the marriage even begins, some people choose to enter into a pre-nuptial agreement. If you are considering whether a pre-nuptial agreement is right for you and your relationship, there are some important issues you should think about.

First, understand that pre-nuptial agreements are not just for the ultra wealthy. These agreements can set out how you and your future spouse intend to divide marital property and marital debt. In the absence of a pre-nuptial agreement, the court will divide marital assets and debts according to California law, which dictates that each spouse will receive half. In some situations, having a pre-nuptial agreement can set out specifically what property the parties deem to be separate property and not subject to division. This may be especially useful when one of the spouses has an interest in a family business. Division of a family business can be complicated, so having a pre-nuptial agreement can greatly simplify the issue in case of a divorce.

Second, you need to understand that not all issues can be dealt with by a pre-nuptial agreement. Specifically, the issues of child support and child custody cannot be addressed. The court will make a decision about custody and visitation based on what is in the best interest of the child, and so it is not good policy to allow parents to pre-arrange what they believe may or may not be best for a child years before the decision is to be made. It is acceptable to make agreements concerning spousal support, as long as the agreement is not unconscionable, or unreasonably unfair.

Third, you and your spouse will both need independent attorneys to review the pre-nuptial agreement before it is signed. Some pre-nuptial agreements have been invalidated when both parties did not have independent legal counsel review the agreement. The purpose of this is to make sure that the agreement is not too one-sided and one party is not unreasonably pressured into signing.

We have extensive experience with helping our clients with drafting and negotiating pre-nuptial agreements. Call us today at 619-800-0384 for a consultation to talk about your marriage and your future.