Prenup Questions Answered
/In simple terms, what exactly is a prenup? A prenuptial agreement, or prenup, is a legal contract that a couple enters into before getting married. It outlines how their assets and debts will be divided and specifies financial responsibilities during the marriage, such as who pays for what. A prenup can also address scenarios in the event of a divorce, including support payments from a higher earner to a lower earner. It considers life changes, such as unemployment or disability, and how these would be managed financially. Additionally, it can include provisions related to inheritances and properties acquired before or during the marriage, ensuring clarity and fairness.
Who usually needs a prenup? Prenups are particularly beneficial for individuals with significant assets, business owners, those with children from previous relationships, or anyone who wants to clarify financial expectations and responsibilities before marriage. They are also useful for people expecting significant changes in financial circumstances, such as inheritance or career changes.
What can and can't be protected by a prenup? For instance, is it possible to protect a house acquired before marriage? In California, a prenup can define separate property and community property during marriage, divorce, and death. It can specify the choice of law that will apply if you divorce and address how funds will be used during the marriage, such as payments from community funds towards someone's separate property residence. You can protect a house acquired before marriage as separate property. However, it cannot include anything illegal or unenforceable, such as decisions regarding child custody or support.
What are the pros and cons of a prenup (especially for women)? Pros: Protects assets and clarifies financial interests, decreases ambiguity in financial expectations and responsibilities, and can prevent lengthy and costly divorce proceedings. Cons: May create tension or discomfort when discussed and could be seen as unromantic or suggesting a lack of trust.
Do couples need a prenup if they have a Trust? While a Trust can provide some financial protections, it does not replace the need for a prenup. A prenup addresses the division of all assets and debts, including those not covered by the Trust, and can provide additional clarity and protection.
What should a woman ask for in a prenup (especially if she is marrying a man)? A woman should consider including protection of premarital assets, clear terms for spousal support, division of marital assets, responsibilities for debts, and provisions for significant life events, such as children and relocation. She should also consider addressing the use of community funds and the treatment of any inheritances.
What can't be asked/included in a prenup? For instance, infidelity clauses are accepted in the U.S? Prenups cannot include terms related to child custody or support, as these are determined by the court based on the child's best interests. Infidelity clauses are generally not enforceable in the U.S., as they are considered against public policy.
How to make a prenup? Do you need to hire a lawyer and/or pay any specific fees? To create a valid prenup in California, both parties should hire their own lawyers to ensure it meets all legal requirements and is enforceable. Each party should have their own attorney to avoid conflicts of interest. Legal fees will vary depending on the complexity of the agreement and the attorneys' rates.
Does a prenup need to be notarized? While there is no legal requirement in California for notarization, it is generally recommended to notarize the prenup to confirm the authenticity of the signatures and ensure it is legally binding.
If the couple divorces, are the terms of the prenup automatically executed, or are there situations where the law “overrules” the prenup? Generally, the terms of a prenup are executed as written. However, a court can overrule a prenup if it is found to be unconscionable, signed under duress, or includes illegal or unenforceable provisions. In California, the court has recently focused on the voluntariness of a prenup and has found that some limits on spousal support are unconscionable.
In your experience dealing with clients, do couples lose trust in each other when a prenup is suggested? While discussing a prenup can be uncomfortable and may lead to initial tension, it often leads to clearer communication and mutual understanding of financial expectations. Many couples find that it strengthens their relationship by addressing potential issues upfront.