Can a Pre-Nup Agreement Protect You Regarding Spousal Support in CA?

Posted by: Gerald A. Maggio, Esq.

prenuptial agreements Orange CountyPrenuptial agreements are often signed by those getting bound by a marriage contract to protect certain rights and to give themselves exemptions from certain liabilities, in case the marriage doesn’t work out. It can be a pretty useful piece of agreement in case something unforeseen happens.

However, many can’t get past a mental block because of a common perception that it shows lack of love and trust between the partners. However, most experts suggest that these apprehensions are unfounded.

Prenuptial agreement under California laws

Prenuptial agreements in California are governed by its Uniform Premarital Agreement Act.  So, in California, a prenuptial agreement is basically known as a premarital agreement and it is a legally binding document that encompasses most aspects of en engaged couple’s life, post marriage.

It mainly deals with the financial aspects of a family, namely asset ownership but it can address spousal support.  Section 1610 of the Uniform Premarital Agreement defines the word “property” and defines its domain. The partners will be protected from each other’s debts in case of a divorce and the property and income settlements may be made as per the agreement clauses, as long as they fulfill the tenets of law.  With regard to issues of spousal support, as long as what is agreed to is not “unconscionable” (meaning substantially one-sided and unfair to one of the parties) at the time of entering into the agreement, such provisions can be enforceable, but it is highly advisable that you have a family law attorney draft such provisions with care.

Family Code Section 1612 defines the clauses that can be inserted into a pre-nup agreement under California laws and what can’t be. It mainly deals with financial decisions made during the tenure of a couple’s marriage.  It strictly prohibits making any contract about the rights of a child and their support since CA laws clearly state that their rights can’t be infringed upon by those of their parents, in case of a divorce.  It also provides an understanding of your liability towards spousal support or alimony and states that you may not be able to invoke this agreement if the party against whom this agreement is being used was coerced, not represented by an independent counsel or is being invoked with unconscionable objectives.

A party can waive his or her right to an independent legal counsel, prior to entering into a premarital agreement but it should be supported by a waiver written and notarized on a paper separate from the prenuptial agreement. There must also be a gap of seven days before signing the agreement and must have the legal capacity to sign it. If a party is not proficient in English, the agreement must be translated into his/her native language and is entitled to a full disclosure of terms, rights and obligations of the agreement.  The agreement can’t be invoked in case of violation of some public policies, as defined by the laws in California.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Prenuptial Agreements Can Be A Great Act Of Prevention

Posted by: Gerald A. Maggio, Esq.

prenuptial agreements Orange CountyA preventive approach is always better than being careless and then repent later on. This is especially true for agreements related to the spousal property. In litigations related to the division of divorce property endless hours are spent by the lawyers for disputing factors like amount of spousal support, property classification among others. However, such conflicts can be easily resolved through a premarital agreement through just a few paragraphs. Moreover, such contracts can help in other departments too like resolving contentious questions related to an inheritance that may result in expensive probate litigation. Moreover, premarital agreements can convert divorce-related succession issues into family-owned businesses more hassle free that it could be otherwise.

In case you are contemplating about going ahead with a prenuptial agreement, you must know the major benefits associated with it which surpasses the advantages any day.

Benefits of prenuptial agreements

When you go for a prenuptial arrangement, you can get the following advantages out of it.

  • Your individual property is protected.
  • You can support your estate plan
  • You can also give a definition to which is a community or marital property
  • Set up ground rules and procedures to decide future matters
  • Get special agreements clarified between you
  • Save money and minimize conflicts in the event of your divorce

Prenuptial agreements can make your relationship stronger

When you go for a prenup, you may come out stronger in your relationship. Though there is a misconception among some people that there may be a conflict while negotiation through a prenup takes place when you communicate freely about your financial matters, your relationship quality can improve to a great extent and also ensures free communication between you and your spouse.

Though, you may not have your signature on the written document at the end of the day, speaking freely about property and money can do away with misunderstandings, which might otherwise pop between the both of you. You need to note that eventually you and your spouse will end up discussing financial matters. Most legal experts and psychologists will advise you that it is better to start doing it early, in case you are equipped to handle it.

Moreover, spouses who have become parents from an earlier relationship should also contemplate of going ahead with a prenuptial agreement.

After all, kids from earlier marriages also deserve to get all possible protection while one walks down the aisle once more. Prenuptial arrangement can easily achieve this by ensuring that some assets like insurance policies, retirement accounts, and some other assets should be in the names of such kids instead of in the name of their new spouses. Otherwise, the latter may inherit them when their partner is deceased.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Can a Prenuptial Agreement be Modified?

Posted by: Gerald A. Maggio, Esq.

prenuptial agreements Orange CountyPrenuptial agreements are essentially contracts which couples enter into prior to the marriage. This contract determines what happens to the spouses and their income/assets in the event of divorce, separation or death. Very specifically, such agreements help in preserving the nature of both spouses’ property if the marriage terminates.

Modification of a Prenuptial Agreement

The prenuptial agreement between you and your partner can in fact be legally modified or altered sometime in the future (when agreed by both parties). Those terms of the agreement which are not altered remain as is, until and unless both spouses demand cancellation of the entire prenuptial agreement in written.

Generally speaking, when a prenuptial agreement needs to be modified, both the parties review each and every provision in the existing agreement and take a decision regarding which agreements need to be modified.

The validity of a prenuptial agreement is dependent on complete disclosure by both spouses with respect to the income, assets, liabilities and debts. In case there is a change in any aspect of this information since the time the prenuptial agreement was signed, it needs to be shared openly. It would be incorrect to assume that the other party is aware about the change.

There are some states in which the prenuptial agreement is altered without involving the party. For instance, it is possible for prenuptial agreements to become void a year and half after the involved parties become parents (until and unless there is a renewal of the agreement in writing at a later stage).

Revision or Termination?

Both parties need to decide whether they wish to modify or end their prenuptial agreement. When a major portion of the existing agreement needs to be modified, then it might be more sensible to end it completely.

It is important to know that in case the prenuptial agreement is completely revoked, state marital property laws will become applicable to property division if and when the spouses decide to terminate the marriage.

Hiring an Attorney

Even though it is possible to revoke or modify a prenuptial agreement after marriage, the parties need to get consultation with an experienced family lawyer. A fiduciary obligation is imposed on the spouses after marriage. This means that the court will be very strict in scrutinizing the changes made to your prenuptial agreement. So if you wish to modify or revise your prenuptial agreement anytime after marriage, you might benefit by taking the help of an experienced family law attorney.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

3 Reasons Why Your Premarital Agreement Might Be Invalid

Posted by: Gerald A. Maggio, Esq.

prenuptial agreements Orange CountyPrenups are a great option for couples who are thinking of tying the knot. They are not only meant to protect the interests and rights of both the parties, but also are effective in minimizing conflicts and disagreements in the event of a divorce. However, many a time, the spouses who design their own prenups end up making glaring mistakes in the text. Such mistakes can cause the entire prenup to become invalid in the eyes of the law. Let us have a look at some of the factors that might make a premarital agreement unenforceable by your state laws.

#1:  An absence of independent legal counsel

The parties signing up the agreement must have sufficient time before they can make up their mind to agree to the terms of the prenup. Also, they must fully understand the implication of each of the legal terms and clauses mentioned on the prenup. The state of California, therefore, makes it mandatory, for both the parties signing the prenuptial agreement to have independent legal representation in the form of a personal attorney, to render the agreement valid. In case, either one or both the parties fail to obtain legal counsel before signing the prenup, the document will be considered unenforceable by the state law. 

#2:  The agreement possesses fraudulent information

There are many cases, wherein one of the partners purposely discloses false or incorrect information regarding the value of his/her property and assets in the prenup. If a spouse is able to prove in the court of law that his or her partner has made an incorrect declaration of their property or assets for obtaining an undue advantage over the former, they have a strong case for requesting the judge to consider the prenup invalid. 

#3:  Duress or coercion

A prenup will be considered as invalid if one party has been forced into signing the document or did not have the mental capacity to do so at the time of signing. For example, if a spouse forces his or her partner, who is under the influence of alcohol or drugs to sign the agreement, the prenup will not be considered enforceable by the state laws. Another example of a prenup being rendered invalid is when a party is coerced against their will to sign the agreement in exchange for some favors.

It is, therefore, advisable, to get a legal consultation from an attorney while crafting a prenup, in order to eliminate the chances of you encountering any legal pitfalls in the future.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

What Cannot Be Included on Your Prenuptial Agreement?

Posted by: Gerald A. Maggio, Esq.

divorce lawyer Orange County; The Maggio Law FirmAlthough a prenuptial agreement is an excellent approach to minimizing conflicts in the event of a divorce or a legal separation, it is absolutely essential for it to be designed in such a way that it is eligible for enforcement by the state court. The state laws have imposed restrictions on the inclusion of certain aspects of a marriage or related issues, which would otherwise render the agreement as invalid or unenforceable.

Provisions that specify anything illegal 

All the states restrict you from mentioning any illegal provision that stands against public policy, in your prenuptial agreement. In the event of a failure to follow this guideline the entire agreement falls at the risk of being completely nullified. 

Instruction for child custody, visitation or support 

A prenuptial agreement cannot include the details of child support, visitation or custody related issues. In the event of a divorce, it is the right of the court to evaluate and announce the final settlement in such matters, by keeping the best interests of the child in mind. The court will not, under any circumstance, take into consideration the provisions of a prenup in deciding a child’s custody, visitation or support settlement and will announce the verdict at its own sole discretion. 

Waiver of spousal support or alimony 

The California state laws limit an individual’s right to modify or waiver spousal support by means of a prenuptial agreement. The implication is that you cannot mention provisions completely denying your obligation of providing alimony or support to your partner, if you decide to separate from him or her. 

Intentionally encourage divorce 

If the court of law is able to establish that the provisions of a prenuptial agreement have been intentionally designed to promote or encourage a divorce or a legal separation, the court will render the agreement unenforceable. A court cautiously scrutinizes all the aspects of a prenuptial agreement in order to prevent any intentional divorces, which have been pre planned for gaining personal financial incentives out of a property division. 

Guidelines about non-financial aspects of the relationship 

Specific provisions that outline the relationship duties of a marriage are better dealt with separately and should not be mentioned on your prenup agreement. For example, you cannot list the division of household responsibilities, agreements of having and raising offspring or your relationship with the step children or in-laws on a prenup. Such non financial issues are not held binding in a court of law.

For more information about premarital agreements in California, contact The Maggio Law Firm at (949) 553-0304.

The Terms You Can Put In Your Prenuptial Agreement

Posted by: Gerald A. Maggio, Esq.

prenuptial agreements Orange CountyA prenuptial or premarital agreement not only provides a sense of security to both the partners but also minimizes marital conflicts and disputes. However, the State of California stipulates specific rules and guidelines of the terms and clauses that can be incorporated in a prenuptial agreement.

Keep your finances separate 

Every state has its own guidelines to classify certain assets acquired within a marriage as marital or separate property.  In the event of a divorce or a death of either spouse, the court of law is obliged to equally divide the marital assets between both the parties. In case you do not want your individually acquired property to be divided according to the state laws, you can mention the same in your prenuptial agreement.

Limit your debt liability

Both you and your spouse might bring along individual assets as well as debts to your marriage. However, in case of a default, the creditors might turn to your marital or community property in a bid to pay off the debt of either spouse. In order to ensure that your marital assets remain untouched, you can limit each other’s debt liability by mentioning a term to that effect in your prenuptial agreement.

Inheritance for your children from a previous marriage

If either you or your spouse has children from another marriage from the past, you can ensure that they inherit their share from your property, by mentioning it in your prenup agreement. This will not only minimize conflicts, but also ensure that your children receive adequate financial support in the event of your demise.

Keep your family property within your bloodline

If you own a family business or heirloom or are entitled to a future inheritance, you can keep it within your birth family by specifying the details of your wish in the prenuptial agreement. Since your spouse will be in agreement of keeping the property separate from the relationship, you can stay assured that there will no conflicts regarding its distribution in the future.

Provide instructions for property distribution in a divorce

As aforementioned, every state has its specific laws that govern the ultimate division and distribution of property in the event of a divorce. In other words, the court of law decides who gets what. However, you can effectively bypass the protocol by specifying in your prenup agreement, as to who will be entitled to what asset or property in the event of a divorce.

If you are thinking of creating a prenuptial agreement with your partner, contact The Maggio Law Firm who can assist you in clearly defining the terms of the agreement.

Myths About Prenuptial Agreements

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys Orange County; The Maggio Law FirmPrenuptial agreements are designed to take a major chunk of the sting away from most divorce cases, by preserving the interests and expectations of both the divorcing parties and keeping the surprise element away from the trial proceedings. In California, a prenup agreement is referred to as a premarital agreement, and governed by the statutes of the state’s Uniform Premarital Agreement Act. However, there are a lot of myths and preconceived notions about the prenup, courtesy popular culture and belief. We are here to debunk a few such myths, and provide you with the correct facts regarding a prenuptial agreement.

Prenuptial agreements are meant for wealthy celebs only

The fact here is that it does not really matter whether or not you have a large estate or property. A prenup agreement will not only provide you clarity of how to manage your finances with your spouse, but also prevent unnecessary conflicts and dispute regarding the same. Having a discussion about your finances, before taking your relationship to the next level will be an effective way of avoiding everyday arguments. 

Prenuptial agreements are biased towards the wealthier spouse

As per the law, a prenup is supposed to be designed in such a way that it conserves and enforces the rights and interests of both the partners involved. An agreement which is biased towards either spouse, will be recognized as unconscionable, and will not be enforced by the court of law. The basis of a prenup is that it should be signed voluntarily by both the parties by their own free will. Furthermore, it is the obligation of both parties to ensure a comprehensive disclosure of their assets and debts to each other. 

Premarital agreements are created to address each and every issue related to a divorce

There is no such law that compulsorily requires a prenuptial agreement to carry instructions for each and every issue that crops up as a byproduct of a divorce. However, since it is largely a private contract, it is up to the partners to decide upon the level of intricacy they want out of the agreement. If you wish to limit your prenup to the protection of your finances, so be it. On the other hand, if you wish to incorporate other aspects such as the execution of a will or a trust, you can create your prenup accordingly. 

A cautiously crafted prenuptial agreement not only provides a measure of peace within the relationship, but also strengthens the bond between the partners by minimizing everyday conflicts over petty issues.

Getting married and divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself about California law before you get married to fully understand why a premarital agreement makes sense.

Invalidating Sections of a Prenuptial Agreement

Posted by: Gerald A. Maggio, Esq.

prenuptial agreements Orange CountyA prenuptial agreement is a legal contract signed by spouses-to-be. It is an understanding about which assets will become a part of the marital property, who will continue to own what assets and how will the finances and assets be divided if a divorce ever occurs. A prenup generally protects the spouse with greater wealth so that they do not have to lose in the event of a divorce.

Women should always opt for a well-executed pre-nuptial agreement. A thoughtfully prepared prenup can be an excellent means of protecting your gifts or inheritances if you ever have to go through a divorce. But the truth is that prenuptial agreements can be contested and certain provisions of the agreement can be invalidated.

Grounds for invalidating a prenup

A prenuptial agreement can be declared invalid on the following grounds –

  • If it can be proved that the prenup is fraudulent. It may be possible that either of the spouses did not disclose their debts, properties and other assets completely.
  • If any party was forced to sign the agreement.
  • If the paperwork is incomplete and inaccurately done.
  • If the agreement was executed without the presence of and validation from any legal representative.
  • If the provisions are not practical.

Ways to prevent invalidation

As it is quite possible to contest and invalidate a prenup on the above mentioned grounds, it goes without saying that you need to make your prenup as foolproof as possible. Apart from that, certain other measures can be taken to prevent the invalidation of a prenuptial agreement and also protect one’s assets. These include –

  • Each spouse should have separate assets and should maintain them separately. Co-owning or having joint accounts will allow the assets to be considered as marital property.
  • Hire an asset protection trust attorney and consult with them. One way of ensuring absolute protection of your separate properties includes transferring ownership into a trust. Do it before you get married or at least before you file for a divorce.
  • Get your properties, businesses and other assets valued at the time of your marriage. Also, get them appraised.

Getting divorced in California can be complicated, so it’s important to know about the divorce process first and then about prenuptial agreement.  So download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Getting a Divorce: How Your Prenup Comes into Play

Posted by: Gerald A. Maggio, Esq.

prenuptial agreements Orange CountyIt has happened. You were both hoping it would not come to this, but it has, and you and your spouse are getting a divorce. As you handle the many details that the divorce process involves, you remember that you had actually planned for this eventuality, you and your spouse had signed a prenuptial agreement. However, you might wonder, how exactly does the prenuptial agreement come into play during the proceedings?

The answer usually depends on the agreement itself. Here are the things you need to be aware of when you head into court with a prenup.

  1. The document needs to show ample proof that no financial assets or liabilities were concealed during the time of signing

Basically, your prenuptial agreement should not be fraudulent, and you need to be able to prove that. A major part of this is making sure that you declared everything you needed, to before signing the agreement, but it might also involve you gathering evidence to support this claim.

  1. The document needs to be in a legally viable format, and should have been filed properly

This is perhaps the most common reason for a prenup being invalidated in court. Your prenuptial agreement needs to be written out in a paper, preferably by a lawyer, with an equitable distribution of assets, signed by both parties involved under advisement from their legal counsel, and witnessed. If there is any issue in any stage of this process, if your prenup is an oral agreement that you and your spouse came to, for example, then there is a very good chance that the document would not hold up well during the divorce proceedings. If there are any doubts regarding the veracity of your prenuptial agreement, make sure you discuss this with your lawyer.

  1. The document needs to be signed by able individuals, and they cannot be coerced or forced

In case you believe you were not thinking clearly due to factors like coercion, manipulation, blackmail, drugs, illness, and so on, when you signed the prenuptial agreement, it might be cause enough for the agreement to be declared invalid. Disclose any doubts you might have had about your or your spouse’s ability to enter a legal, binding agreement with your lawyer before proceedings begin.

  1. The agreement must be conscionable

If you signed an agreement which stipulated that you would receive no spousal support under any circumstances where there is a huge disparity of income and wealth between the parties at the time that the agreement was entered into, then it might be in your best interest to have that prenuptial agreement invalidated.  Courts frown upon blatantly unfair or lop-sided agreements that favor one spouse to the vast detriment of the other.

There are many ways in which a prenuptial agreement can affect your divorce proceedings, and to have things go your way, you need to disclose everything about the agreement to your lawyer. Only full disclosure of your agreement, the contents and the circumstances under which it was signed, to your lawyer, can help you during your divorce proceedings.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

How Does A Prenuptial Agreement Impact Divorce Settlements?

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys Orange County; The Maggio Law FirmPrenuptial agreements or prenups are contracts undertaken between two partners who are soon to be married, and detail the terms of what will happen, should the marriage go sour. If you and your soon to be ex had the foresight to work out a prenuptial agreement before you got married, your divorce proceedings should, in general, be a much smoother process. Here’s a look at how having a prenuptial agreement impacts divorce settlements.

What does a prenup do?

A prenuptial agreement is a written undertaking that is legally binding, like any contract, with specific terms laid out usually with regards to the divisions of assets in the event of a divorce. It may also lay down specific conditions or circumstances under which one spouse may give up their rights to the marital assets. For instance, if the prenup says a spouse will not get anything if they are found guilty of adultery, are abusive or use drugs, then this will steer the divorce proceedings in that direction.

Proving infidelity or abuse

In case the prenup has some conditions which exclude either the husband or the wife from taking their share of the assets, for instance if they cheat during the marriage, then the onus is on the other spouse to prove this adultery. Once this is proven in a court of law, the other spouse will lose their right to the assets, as per the terms of the contract. If however, this cannot be proven, then a good divorce attorney might still be able to help get some of the assets, if not an equitable share.

Dealing with what isn’t in the prenup

While a prenup is usually well thought through and arrived at through mediation and with the consultation of a professional, and checked by your attorneys, there are times when it doesn’t cover every eventuality. For these aspects of the divorce, the regular route of mediation or heading to family courts will play out.

Caveat!

Having a prenup doesn’t mean you are covered, if the contract doesn’t hold water in court due to improper phrasing or missed details in the drafting. This is why you must be extra careful when drawing up the prenuptial agreement. Work with family law attorneys with experience in prenups as well as the laws specific to the area you live in.

Even if it is legally accurate, a prenup can be dismissed or ignored by the court if it is deemed unfair or fails to stand up to the requirements of the state the divorce is being filed in. So be sure your prenup is not just perfectly drafted, but also unambiguous, logical and most importantly, justifiable.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

 
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