Considering a prenuptial agreement prior to marriage and feel it shows a lack of trust? On the contrary, it’s a smart move.
These days, more and more Americans are opting to have a prenuptial agreement drafted prior to marriage. “Premarital agreements, also known as prenuptial agreements, are a smart move to protect your assets going into the marriage,” said Gerald A. Maggio, of the Maggio Law Firm in Irvine, California.
Once upon a time these agreements were regarded as a lack of trust in the other party, regarding the upcoming marriage. Nowadays, those about to be married, particularly those who are older or on second marriages, realize the value of having a premarital agreement in place should anything go sour later. In addition, prenups are for the protection of both spouses, not just the one with the most money.
Are prenups “unromantic?” “Perhaps in some respects they are, but not signing one in the State of California means the marriage would then be governed by a convoluted set of rules known as the California Family Code. What all this legal jargon boils down to is that either the people planning on getting married choose their own rules to live by, or live by the rules of the State. Most people prefer living by their own rules,” added Maggio.
Of interest is the fact that Jewish marriages have traditionally called for a prenup called a Ketubah. It is considered the whole foundation of marriage in the Jewish culture. The Catholic Church also has a similar idea, called a “Prenup Dialogue” as part of their marriage preparation courses called Pre-Cana. The bottom line here is that prenups prepare people for the marital journey ahead of them. “Talking about money ahead of time may save heartache later,” explained Maggio.
While it might cause a few moments of utter stress as the negotiations for a prenup get started, the whole process may result in a surprising turn of events. It may actually strengthen a relationship in that both sides need to be brutally honest and open about how they handle money and plan for the future. Knowing the rules going into the marriage is far better than being surprised later by rules no one was aware of and disagrees with as well. This only makes good common sense.
“When in doubt, make certain to have a consultation with an expert family law attorney who will outline what is required for a prenup in the State of California and how the prenup may be affected by California community property law,” suggested Gerald A. Maggio, of the Maggio Law Firm in Irvine, California.
To learn more about the Maggio Law Firm visit Maggiolawfirm.com.
1. You protect your assets earned prior to marriage.
2. You are able to take control over your destiny, rather than leaving it up to the Court to determine.
3. You are able to enter marriage with clarity and understanding with your spouse.
4. Most current divorce statistics indicate that approximately 50% of all marriages end in divorce. Subsequent marriages have a significantly greater chance of ending in divorce.
The bottom line is that you can be smart and pragmatic in facing reality, protecting your assets and taking control of your life, wile also facing an open discussion and agreement with your fiancee that may even strengthen your relationship so you can focus on romance and love, not money.
California Family Code section 1615 addressed the enforceability of premarital agreements and states that:
a. A Premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
- The the party did not execute the agreement voluntarily
- The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to the party:
- The party was not provided a fair, reasonable and full disclosure of the property or financial obligations of the other party
- The party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided
- The party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
b. An issue of unconscionability of a premarital agreement shall be decided by the Court as a matter of law.
c. For the purposes of subdivision, it shall be deemed that a premarital agreement was not executed voluntarily unless the Court finds in writing or on the record all of the following:
- The party against whom the enforcement is sought was represented by an independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
- The party against whom enforcement is sought has not less than 7 calendar days between the time the party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
- The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by the paragraph and indicating who provided that information.
- The agreement and the writings executed pursuant to paragraphs (1) and (3) were net executed under duress, fraud or undue influence, and the parties did not lack capacity to enter into the agreement
- Any other factors the court deems relevant.
