What Does a Prenup Protect?

Premarital agreements are another name for prenuptial agreements. An engaged couple enters into this type of agreement before marriage and the agreement takes effect when the marriage is official. Essentially, parties can take control of their finances and other assets and predetermine the distribution of their property in the case of dissolution or separation. Premarital agreements are not just a tool to protect the wealthy spouse, but can be used to protect both spouses.

How do I Protect Assets I Acquired During My Marriage?

One of the main purposes of a premarital agreement is to protect assets acquired during marriage. For example, in a community property state such as California, salary and wages acquired from the date of marriage to the date of separation are community property. However, parties can agree in writing that all earnings shall be separate property.

Premarital Agreements and Home Ownership

If the husband or wife owns a home prior to marriage, the house is that person’s separate property. However, if the couple lives there after they get married and uses community funds (earnings acquired during marriage) to make mortgage payments, the community earns an interest in the property. This is where the lines between separate and community property can, and often do, get blurred. With a prenup, the parties can agree that the community will not earn such an interest from its contribution to the mortgage, keeping the home as the original owner’s separate property.

What are the Limitations to a Premarital Agreement?

In California, there are only two limitations on what you can include in a premarital agreement.

[1] Child Support or Child Custody

Premarital agreements cannot address child support, child custody, or child visitation rights. If an agreement even attempts to address any of these issues, the agreement is voided.

[2] Violation of Public Policy

Premarital agreements cannot violate public policy. The court has discretion over what things violate public policy, and such things change over time. In the past, a waiver of spousal support violated public policy. Currently, the main thing that courts find to violate public policy is something that promotes the dissolution of marriage. However, this does not permeate the entire agreement, and the court retains the right to extract that paragraph alone. For more information on what you can and cannot include in a prenup, contact an experienced family law attorney in Los Angeles.

What are the Requirements for a Valid Premarital Agreement?

For a prenup to be valid in California, the agreement must: [1] be in writing, [2] contain full disclosure of all assets and liabilities, and [3] be signed voluntarily and knowingly. The third requirement means that the agreement must not be unconscionable, such that the agreement must be in a language that the signing spouse is proficient, there must be seven days between when the signing spouse receives a final and complete copy of the agreement and when the agreement is signed, and the signing spouse should have independent counsel.

If you are considering a prenup, or have been asked to sign one, ensure that you retain the best family lawyers in Los Angeles. Contact Walzer & Melcher today.