The attorneys at Felix & Killen, with offices in Santa Barbara and Carpinteria, can help you protect your assets through a proficient and binding prenuptial agreement before you say “I Do”.
What is a prenuptial agreement?
A prenuptial agreement (also called “prenup”) is a contract between you and your future spouse that spells out what happens if you unfortunately end up divorcing. This negotiated agreement between you and your soon to be spouse covers almost every aspect of a possible divorce.* This means that your divorce would not be governed by a complex set of laws, but rather what the two of you want.
The prenup is a complete road map in case of a divorce. A prenuptial agreement, for example, allows you and your future spouse to make your own decisions, regardless of the state law, about, for example, property distribution, at the time of a divorce. A prenuptial agreement is not just for the benefit of one spouse. The agreement should protect the rights of both spouses by providing that all income, assets, and debts acquired or incurred during marriage remain the separate property of the spouse who acquired or incurred them.
What are the elements of a valid prenuptial agreement?
1. The agreement must be entered into voluntarily (i.e. the person was not forced to sign the agreement). Whether an agreement was executed voluntarily is judged by the following criteria:
a) was the person represented by an independent attorney, or was the right to an independent attorney waived in writing;
b) whether the person had at least 7 calendar days to review the agreement, before signing the agreement;
c) if the person is not proficient in English, and not represented by an independent attorney, the person must execute an additional document, stating that the terms of the agreement were provided to him or her in the language in which he/she is proficient, and that he/she understood the terms.
2. The agreement was not unfair when it was executed. Fairness is judged by the following criteria:
a) whether the person was provided a fair, reasonable and full disclosure of the assets and debts of the other person;
b) whether there was a voluntary waiver, in writing, of the right to full disclosure of assets and debts beyond what the other person disclosed;
c) whether the person had adequate knowledge of the assets and debts of the other person;
*Note: Although a prenuptial agreement can contain complete waivers and/or limitations on spousal support, the issue of whether spousal support is waived or limited is determined at the time of enforcement of spousal support. If the spouses separate and one party has significant assets and income, while the other party has nothing, a judge will likely rule that is unconscionable to leave the latter spouse without support. In such cases, the judge will award spousal support, irrespective of the waiver or limitation provision contained in the prenuptial agreement.