Five Tips for Drafting a Prenuptial Agreement

When entering into a marriage, the last thing you want to think about is the possibility of that union ending in divorce. Unfortunately, in a world where about 50 percent of marriages wind up in failure, divorce is an increasingly common reality for many couples. If you’re a wealthy individual with more to lose than most, the prospect of divorce is even more daunting. Our Irvine family law attorneys often assist high net worth clients with preparing for the worst by helping them enter into prenuptial agreements. Prenuptial agreements are excellent tools to protect your assets and keep everyone’s expectations aligned with what might happen should the marriage end in dissolution.

To prepare an agreement that will withstand even the most bitter divorce, you should work with your attorney to effectively outline the most important terms and draw up a plan for what might happen if a divorce occurs down the line. Below, we review our top five tips for creating a prenuptial agreement that keeps your assets secure.

Take at Least 60 Days to Plan your Agreement

Don’t wait until you are weeks away from your wedding to get your prenuptial agreement drafted and signed. Most parties will likely enter into some kind of negotiation when they’re working out their agreement details. We recommend speaking with our Irvine family law attorneys at least 60 days before the wedding so you can get your paperwork in order and say ‘I do’ with confidence.

Have Your Partner Find Their Own California Attorney

While it’s true that you will be sharing everything as part of your marriage, you should not be sharing legal counsel when you’re working out the terms of your prenuptial agreement. You should encourage your partner to find their own representation to feel comfortable with the terms of the agreement and know what questions they need to ask before signing.

Present Your Assets in a Transparent Manner

You should be prepared to disclose up to three years worth of tax returns and income statements demonstrating your earnings, in addition to documentation proving the value of certain assets, whether that’s real property, businesses, or retirement or investment accounts. While you may be tempted to hide or obscure certain elements, disclosing your net worth in a transparent manner ensures you’re starting this new union off on the right foot and eliminates any issues about your honesty and intentions if the prenuptial agreement is contested down the line.

Protect Any Agreements from a Past Marriage

If you are paying child support or alimony from a former marriage, you will want to be sure that you are protecting those arrangements in your prenuptial agreement. Be sure to include these obligations in your prenuptial agreement so that your new partner understands that anything they may be entitled to will not affect this prior agreement.

Hire Our Irvine Family Law Attorneys

If you’re considering entering into a prenuptial agreement that both protects your assets and keeps your marriage on the right track, contact our offices today. Our Irvine family law attorneys are eager to work with you on creating an agreement that makes both you and your future spouse feel comfortable and at ease about the road ahead.

Frequently Asked Questions

How far in advance should a premarital agreement be signed?

Well before the wedding, and considerably earlier than the statutory minimum. California requires at least seven calendar days between the party first receiving the agreement and signing it, and failing that requirement can render the agreement involuntary and unenforceable. Seven days is a floor, not a target. An agreement presented weeks or months ahead, with real time for review and negotiation, is far more defensible than one signed on the eve of the wedding, which is the fact pattern most often used to attack an agreement later.

Does each party need their own attorney?

For the agreement generally it is strongly advisable; for a spousal support provision it is effectively required. A provision waiving or limiting spousal support is not enforceable against a party who was not represented by independent counsel when the agreement was signed. For the remainder of the agreement, a party may waive independent counsel, but only in a separate writing and only after being fully informed in writing of the terms and the rights being given up. The presence of independent counsel on both sides is the single strongest fact supporting enforceability.

How complete does the financial disclosure have to be?

Fair, reasonable, and full disclosure of property and financial obligations, unless that disclosure is expressly waived in writing. In practice a bare list of asset categories without values is a weak foundation. A schedule with values, supported by statements and tax returns, and attached to the agreement itself, is what holds up. Where a business interest is involved, understating it is a substantial vulnerability, because the challenge to disclosure combines with any other defect to make the agreement considerably easier to attack.

What should a premarital agreement actually address?

Characterization of property each party brings in, how property acquired during marriage will be characterized, how income from separate property will be treated, what happens to appreciation in a separate-property business built during marriage, whether spousal support is waived or limited, responsibility for debts, and how the agreement is amended. It cannot limit child support or bind future custody arrangements. A severability clause matters, because it allows the rest of the agreement to survive if one provision is later held unenforceable.