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When do I need a premarital (or prenuptial) agreement?

Premarital or prenuptial agreements are contracts that individuals can make prior to getting married, which are intended to define the financial relationship between the spouses both during the marriage, and when the marriage ends, whether by death or by divorce.  If a couple doesn't have a premarital agreement, the terms of their financial "partnership" will be defined by the laws of the state or country where they live.  Different states have different rules about what happens with respect to divison of property, and financial support, in the event the marriage ends by death or divorce.  Without an agreement,  the rules can change just by moving to a different state or country. 

It is always a good idea when contemplating marriage to have frank discussions with your soon-to-be-spouse about how you expect to handle finances after marriage.  Couples often have different expectations, which may be informed by observing their parents, or what they themselves have experienced. Making sure that both of you are on the same page about money is key to a long and successful marriage.  Couples who don't talk about money before marriage can discover in the course of the marriage that they don't like the way their spouse handles finances.  If the differences are severe enough, this can lead to divorce. 

In a case where a couple's desired terms of agreement are consistent with California law, no premarital agreement may be necessary, at least so long as the family continues to reside in California at the time the marriage ends.  However, if it is anticpated that there may be relocation away from California during the marriage, having a premarital agreement can ensure that the rules that you and your spouse have chosen will not change if you move.

Force, coercion and deceit in the negotiation of a prenuptial agreement can render the agreement invalid when one party tries to enforce it. For example, if one party did not adequately disclose premarital assets or debts to the other, has pressured the other into signing the document, or did not give the other enough time to review the prenuptial agreement with an attorney before signing, then the contract may not be thrown out.

There are special rules that apply in California if the premarital agreement provides for a litmitation or waiver of spousal support (alimony) in the case of divorce. Courts are permitted to decline to enforce spousal support provisions in a premarital agreement if, at the time the agreement would be applied, the judge finds that the agreement is "unconscionable."  "Unconscionable" means that the provision is so unfair, that it "shocks the conscience" of most people.

Most people who choose to have a premarital agreement do so to avoid disagreements about money both during marriage and at the end of marriage.  Hence, it is key that, if you take the time to discuss and have a premarital agreement, both spouses feel they can live with their agreement under any circumstance, and fell assured that the agreement will be enforced. 

Because this is a very technical area of family law, it is important to have a knowledgable and skilled attorney who can help with both the drafting and executing of prenuptial agreements to ensure that these important matters are properly addressed.

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Nachlis & Fink
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