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Should you be considering a prenuptial agreement?

When a couple is planning on getting married and spending the rest of their lives together, acknowledging the fact that their union could end is not typically something they want to do. This is why many people shy away from discussing prenuptial agreements. For older couples the agreement is more about estate planning and protecting their children's inheritances than it is about contemplating divorce.

While it may not be an enjoyable or comfortable conversation to have, discussing prenuptial agreements can be a way to lay all the cards on the table and make provisions for the future to protect individual interests. Having an open and frank discussion about financials assets and issues will lead to a better understanding during the marriage about finances. Too often, couples never discuss finances until a problem arises after the marriage. So should you consider a prenup?

In order to answer this, we should look at what you can do with a prenup in California. According to state law a prenuptial agreement can:

  • Identify and confirm ownership of property, whether shared or individual
  • Dictate which party or parties have rights to property
  • Limit debt liability
  • Specify personal rights, as long as they are not unlawful or in violation of public policy
  • Determine what is community income or separate
  • The making of a will or trust to carry out the agreement

However, couples must be careful to understand the limitations of a prenup. For example, a prenup may not be enforceable if:

  • Each party does not have an independent attorney
  • If the agreement was not entered into voluntarily
  • It contains stipulations for child support that adversely affects a child
  • There is a failure to fairly disclose all assets and liabilities
  • Spousal support agreements are made that are unconscionable now or upon divorce
  • There are financial incentives for divorce

With all this information in mind, it may be wise for couples to speak with an attorney about a prenuptial agreement if they have significant, or significantly different, assets. Ultimately, these documents are directed primarily at protecting or defining individual finances and taking some of the drama out of property division discussions in the event of a divorce. They will also simplify the disposition of property in the event of an untimely death. Many couples are choosing mediation or the collaborative law process to make these decisions in a respectful and cooperative way.

Talking about these matters prior to a wedding may not be romantic, but it can be crucial in the long run. Many couples may never even end up needing them if they never get divorced. Having a prenup should not be viewed as a predictor of divorce; it should serve as a way to be sure you and your spouse are on the same page and have protections in place, should your relationship deteriorate and end in divorce.

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