The ‘PreNup Primer’

Whether you are in agreement with Premarital Agreements or not — it’s always a hot topic and one that breeds fascination, gossip and emotion. What we do know is that in California, they are legal and the longer I am in practice, the more I am asked to draft them and/or litigate against their enforcement.

A Premarital Agreement (aka Prenup) or Pre-Domestic Partnership Agreement (for registered Domestic Partners) may be legal, but that certainly doesn’t mean you can agree to whatever you want. Usually, my clients are interested in contracting with regard to property (keeping their premarital property separate and opting out of community property laws) and spousal support. It’s also important to follow all the laws surrounding creation and enforcement. For example: don’t wait until your wedding day to sign your Prenup and ensure there is adequate time (7 days min) between presentation of the Prenup and signature. Independent attorney representation is also key!

A Premarital Agreement can cover the following:
  • Rights and obligations with respect to property (pets are included as property);
  • Right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest, encumber, dispose of, or otherwise manage or control property;
  • Spousal Support (but with limitations)
  • The making of a will or trust;
  • The choice of law governing the agreement;
  • Any other matter, including the spouses’ or registered domestic partners’ personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
What can’t you put in a Premarital Agreement? Below are some examples:
  • Children! You cannot require religious practices or instruction for children or create a term that adversely affects the right to child support. You cannot provide for custody of children.
  • Punishment! Terms requiring or rewarding personal services between the parties are prohibited. What does that mean? Examples: No liquidated damages for cheating on your spouse. (We have a no-fault divorce system). No financial penalty for a spouse’s substance abuse recurrence.
  • Unlawful behavior! Shocker.

Premarital agreements can be effective tools but beware — don’t try this at home. They are a complicated endeavor that requires experienced legal advice!

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