The purpose of a “prenup”, or premarital agreement, is to create a document that legally establishes how certain assets and/or property will be distributed if the upcoming marriage should, at a future time, be terminated. The agreement provides protection and direction concerning a future event that may not occur. It does not cast any particular shadow, so to speak, over an impending marriage. It may even serve to prevent contentious litigation and general unpleasantness down the road.
The State of California adopted the Uniform Premarital Agreement Act (UPAA) in 1986. This statute established that legally valid prenuptial agreements take effect upon marriage, and delineated what is and is not legal to include in a couple’s prenup. And, as with separation agreements, a prenup is a legally binding contract, to be agreed to and signed in good faith.
Some elements both parties should consider within the scope of a prenuptial agreement can include:
- Spousal support/alimony
- Community property/separate property (California being a community property state)
- Specific rights relating to wills, trusts, and rights to specific inheritances
There are of course some subjects that a prenuptial agreement can’t impact. These include:
- Certain rights regarding employee benefit plans/participation
- The rights of the involved parties’ children, or children born during the marriage (California Family Court retains jurisdiction concerning children; a prenup cannot)
- Anything that violates existing law
A prenuptial agreement can preserve assets and property. It can provide peace of mind. It can be a demonstration of practicality and preparation, should the unexpected take place. It is not meant to punish either party, give unfair power or advantages to either party, or add stress to situations that are already uncomfortable, if a marriage should come to an end.
Of course, you may be wondering, “Can’t my betrothed and I do this ourselves?” Our answer is “you may want to remember what Director Steven Spielberg found out the hard way”. You might recall that when he and actress Amy Irving divorced after four years of marriage, she argued that their prenup, which was written on the back of a napkin, was not enforceable because she was not represented by an attorney. In the end, she received a $100 million settlement. When Spielberg married again—this time to actress Kate Capshaw—they both were represented by attorneys. Though nothing in this blog should be taken as legal advice, we believe our point is clear: both parties to a prenup ought to consider being represented by their own attorneys.
If you have questions about a prenuptial agreement, or you’d like to better understand how
California prenuptial law can affect you, speak to an experienced attorney at Dinnebier & Demmerle. As Orange County’s premier family law specialists, we can provide advice and representation to guide you toward the best possible outcome. Please call at your convenience to set up a consultation. When you’re ready to move forward, call us at 714-598-3714.