Debunking the Prenup Stigma
Strangely enough, Californians do not seem to celebrate choice and self-governance when entering into the marital relationship. The vast majority of Californians do not opt to create their own “prenuptial agreement” (a before marriage agreement) with regard to resolution of property and support issues in the event a dissolution occurs. Rather, they rely on the default community property system which controls here in California, and in several other states. In fact, many argue that the existence of a prenuptial agreement reveals that an impending marriage is doomed to fail. This group would argue that preparing for the ending of a marriage before-hand, during the “good” times, suggests an underlying deficiency in the relationship. Admittedly, creating a prenuptial agreement requires a couple to venture into territory that may not be comfortable. Imagining the end of a marriage is obviously depressing—and certainly no one wants to be depressed, especially after they have decided to embark on a new life with a partner. Nonetheless, this endeavor forces two people to communicate about important financial issues they may have never discussed before—division of assets (present and future), division of debts (present and future), spousal support, child support, etc. In that way, it could even be characterized as a litmus test for the marriage.
In any event, the creation of a prenuptial agreement allows a couple to craft their own plan with regard to their marital future. It provides a way to tailor and design the possible termination of a marriage to completely meet your needs and wants. In essence, a prenuptial agreement puts a couple in the driver’s seat, letting two individuals make their own specialized marital laws. So why not take advantage of this ability to self-govern? If one is willing to take so much care in ensuring their favorite song is also their ring tone, surely, they should invest as much time (if not more) protecting their legal interests if a divorce ensues.
So, for those out there brave (and wise) enough to create their own laws, the following is a brief summary of the legal requirements California imposes upon prenuptial agreements in 2007.
The agreement shall:
1. Be in contemplation of marriage;
2. Be in writing;
3. Be signed by both parties;
4. Not adversely affect a child’s right to support;
5. Not be in violation of public policy or a statute imposing a criminal penalty;
6. Be voluntarily entered into, which is defined as:
a.) the party (against whom enforcement is sought) being represented by legal counsel at the time of signing the agreement or said representation being expressly waived, in a separate writing
b.) the party (against whom enforcement is sought) having not less than seven calendar days between the time that the party was first presented with the agreement and advised to seek independent counsel and the time the agreement was signed
c.) the party (against whom enforcement is sought if unrepresented by counsel) was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conduced and in which the agreement was written
1.) the explanation of these rights must be memorialized in an agreement in writing and delivered to the party prior to signing the agreement
2.) receipt of this explanation (as well as the source) must also be acknowledged in a signed documents
d.) all documents were signed without duress, fraud, undue influence, or lack of capacity; and
7. Not be unconscionable, which is defined as:
a.) the party being provided a fair, reasonable, and full disclosure of the property and financial obligations of the party
b.) the party voluntarily and expressly waiving their right to disclosure of the property and financial obligations beyond disclosure provided
c.) the party having an adequate knowledge of the property and financial obligations.
***If the agreement contains provisions regarding the issue of spousal support, including, but not limited to, a waiver of said support, the party against whom enforcement is sought must be represented by independent counsel at the time of signing.
Clearly, the aforementioned guidelines are intended only to be a starting point in the creation of a prenuptial agreement. Once you and your partner have discussed the ideal plan for your legal partnership, it is most advisable to take said plans to an attorney to have him or her memorialize the agreement.
Written by Kayla Horacek
