When people get married or enter into domestic partnerships in California, they begin to accrue community property together, as provided by statute. However, in some cases, parties may want to arrange their property accrual differently from the statutory plan. In those cases, they may want to enter into a prenuptial agreement, a binding written contract that is entered into before they marry, and with independent legal advice for each party.
Some people believe that prenuptial agreements are insurance against a divorce occurring, but this is not true. There is no guarantee that a couple entering into a prenuptial agreement will not divorce, although by entering into the agreement they are clarifying their property and financial issues with intention to avoid disputes in future.
Prenuptial agreements can deal with such issues as changing community property into separate property and vice versa, preventing the accrual of community property by either party, the arrangement of household finances after marriage, contracts to will, and the like. Parties can also contract for the waiver of spousal support, but in order for such a waiver to be enforceable, certain specific statutory rules must be followed. Parties are not allowed to waive or adversely affect child support in prenuptial agreements.
I prepare prenuptial agreements, and advise clients who have been presented with a prenuptial agreement prepared by another attorney or party. In all such cases, parties are required to fully disclose their assets and debts as part of the agreement.
When a client comes to me regarding a prenuptial agreement, I will want to know why the client and/or other party believe they need the agreement. I will also make a detailed inquiry into the financial circumstances of both parties, as well as make sure that full disclosures have been made on both sides. If a proposed prenuptial agreement contemplates the waivers of legal rights, the client will be given complete information about that issue, so an informed decision can be made. Negotiations with the drafting or responding attorney or party also can be helpful in resolving any disputes over the terms of a prenuptial agreement.
Some prenuptial agreements can be discussed and drafted using the collaborative law process, which lends itself very well to these agreements. In such cases, both parties would have collaboratively trained attorneys, and an inquiry would be made into the goals and interests of both parties, so the resulting agreement would meet their highest and best interests to the fullest extent possible.