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An important question that couples contemplating marriage face is whether they should have a prenuptial agreement, also called a premarital agreement. Whether or not it makes sense for you to have a prenuptial agreement is the subject of a whole other blog (or three), but, assuming you do decide to enter into a prenuptial agreement, you need to take great care that: 1) the prenuptial agreement actually says what you think it says; and 2) the prenuptial agreement can actually be enforced. Below are 5 common mistakes people make when entering into a prenuptial agreement in California.

Assuming all Prenuptial Agreements are the Same

Believe it or not, it is not uncommon for a divorcing spouse to find themselves on the wrong end of a legal divorce action and be completely flabbergasted because, “we had a prenup!” But when that person is asked what is actually in the prenuptial agreement, they may have no idea.

Let’s get this straight at the outset: “having a prenup” doesn’t really mean anything, rather it’s the provisions contained in that prenuptial agreement that are important (and whether those provisions can be enforced). Some prenuptial agreements you find on the internet for free or for low-cost purchase may contain provisions which are no different than what California law says with regard to issues such as property or spousal support, meaning you may have to litigate those issues just as if you had no agreement. Furthermore, if a prenuptial agreement is not specific to your situation, it may leave open just as many questions as if you did not have the agreement, which could lead to you and your spouse having to litigate those matters in court regardless of what your agreement said.

Thus, it is important to create a detailed prenuptial agreement which adequately addresses all applicable issues both now and into the future if your intention with the agreement is to avoid litigation down the road.

Not Obtaining a Financial Disclosure From Your Fiance

If you are going to enter into a prenuptial agreement with your soon-to-be spouse, you should really know what exactly it is you are agreeing to, and you can’t do that if you don’t know what the other party’s financial situation is. For example, if your fiance owns millions of dollars in real estate assets you were not aware of, while at the same time asking you to give up financial rights in the marriage on the premise that he just wants to make sure his children from a previous marriage have enough money to go to college, finding out what he actually owns (among other things) will be important in assessing the reasonability of the prenuptial agreement proposed. Your attorney can obtain a financial disclosure on your behalf and review it in accord with the proposed prenuptial agreement.

Including Provisions that Cannot Actually Be Enforced

California law limits what can actually be included in a prenuptial agreement, and a court will not enforce those provisions which are barred by law. Furthermore, the inclusion of such provisions may call the legitimacy of the entire agreement into question many years later when divorce proceedings begin. For example, you cannot include provisions related to child custody or child support in a prenuptial agreement. Similarly, some people attempt to put “infidelity clauses” – essentially clauses which punish one spouse if they cheat during the marriage – in an agreement, but California courts will not enforce such clauses.

Not Having an Attorney Review on Your Behalf

Ideally, you should be having an attorney create the prenuptial agreement on your behalf to ensure that the agreement actually serves your intents and purposes, that there is nothing left out which should be in the agreement, that your fiance has not inserted a confusing provision which may come back to bite you in ways you never expected, and, perhaps most importantly, that the agreement will even be enforceable. At the very least, even if your attorney does not participate in drafting the agreement, you should have your own attorney (and not your fiance’s attorney) review the agreement on your behalf and address all these issues before signing it.

Your Fiance Not Having an Attorney Review on His or Her Behalf

Similarly, it may be just as important for your fiance to have his or her own attorney review the agreement and approve it, as some provisions and/or the entire agreement may be unenforceable otherwise. For example, waivers of spousal support in a prenuptial agreement are not enforceable in California against a party who did not have his or her own independent counsel in the process of entering into a prenuptial agreement.

Guidance on Your California Prenuptial Agreement Questions From a Westlake Village Family Law Attorney

If you would like to learn more about how our office can provide guidance on your Prenuptial Agreement issues or any other California family law issues you are facing in Ventura County or Los Angeles County, contact the Zonder Family Law Group office today at (805) 777-7740 or (818) 877-0001, or schedule your strategy session using easy-to-use online form here.

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Hello, I'm Lisa Zonder

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