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Premarital Agreements Plan for Success, Not Failure.

Premarital Agreements Plan for Success

For many couples about to tie the knot, the thought of a premarital agreement (or “prenuptial agreement”) can seem rather unromantic. You may feel that broaching the subject with your intended will be received negatively, or as a sign of distrust in the longevity of the relationship. After all, isn’t marriage forever?

Unfortunately, however beautiful the wedding or extravagant the honeymoon, the reality is that some marriages are NOT forever. You may have heard that “50% of marriages in California end in divorce.” This isn't actually true, as there are different statistics for 1st, 2nd, and 3rd marriages, and even more breakdowns for the length of marriage (prior to divorce). The number also changes if you exclude separations. Some studies place the California divorce rate in 2013 at a staggering 75 percent, meaning 3 out of 4 marriages in the Golden State will end in divorce. But nationwide it typically breaks down as follows:

41% of 1st marriages end in divorce;
60% of 2nd marriages end in divorce; and
73% of 3rd marriages end in divorce

Whatever the exact breakdown, the point is, divorces are skyrocketing in California, even among our major religious groups, including: Christian, Jewish and Muslim couples. Senior citizens are divorcing after decades of marriage. Couples who have built successful businesses together over a 25 year marriage are throwing in the towel. The point is, no couple goes into a marriage planning for a divorce, but I can almost guarantee that each couple who has divorced wished they'd had a prenup.

If this happens to you, are you prepared for the financial fall-out?

Premarital Agreements Plan for Success

Family law litigation, especially in the best situations, can be expensive the larger your community estate. Untangling and dividing 10 - 25 years of a life together can take time and cost you thousands, especially when there is conflict and discord between the parties.

Unfortunately, as a family law attorney my ability to separate my emotions from reality are not shared by all. As a ‘realist’, my job is to inform clients, or potential clients, that the need for a premarital agreement is real because the risk of divorce is real, especially when you have significant separate property assets, or if this is your 2nd or 3rd marriage; a strong likelihood in this day and age.

Those of you marrying for the first time may not see a need for a premarital agreement being that you may be in the beginning of your careers, may not have acquired any assets of real substance, or do not have extensive real property investments or a privately owned business to worry about. Though I would disagree that a premarital agreement isn't ever needed, the need for an agreement isn’t as strong when a zero asset lower-income couple marry for the first time, then it would be for couples who do have extensive estate or business holdings, or who are on their 2nd or 3rd marriage. I strongly urge clients in the latter category to consider the benefits and protections provided by a California premarital agreement.

It may seem strange to argue that a premarital agreement prepares you for success, but it does do this in TWO ways. First, a married couple with a strong premarital agreement can look at their marriage, in times of difficulty, with emotional honesty towards the real issues in their marriage. When both couples know what to expect in the event of divorce, it is far more likely that couples will either stay in their marriage (or work on their marriage) because they want to, not because they are afraid of the financial fall-out if they don’t. Feeling financially trapped by a marriage can lead to resentment, and resentment often leads to the disintegration of the emotional bond between the spouses. In short, financial issues become less of a focus when a well-thought out and comprehensive premarital agreement has already predetermined the means by which the estate, both community and separate, will be divided.

Secondly, if divorce does occur, each side can more easily obtain those goals which are key in every divorce: a quick resolution, reduction in costs, and elimination of extended conflict and protracted litigation.

What a California PreMarital Agreement can contain and what it can't.

Premarital Agreements Plan for Success

Premarital agreements in California are governed by California’s Uniform Premarital Agreement Act.  Section 1610 of the act defines a premarital agreement as an agreement made by an engaged couple that takes effect when they get married.  California Family Law Code Section 1610 also defines what property is; and the definition is very broad, encompassing pretty much anything of value.

Under California Family Law Code Section 1611, a premarital agreement must be in writing and signed by the parties against whom it will be enforced.

California Family Law Code Section 1612 sets out what can and can’t be in a California Premarital Agreement. This is fairly similar to most other states.  Generally any financial issue can be dealt with in a premarital agreement.  However, issues relating to children, including child support and custody are not permitted. Nor is one allowed to contract about obligations during the marriage, such as household chores, frequency of sexual relations, or penalties for adultery.  

California also has special provisions regarding spousal support.  Basically, provisions regarding spousal support in a premarital agreement will not be enforced unless the person whose receipt of spousal support is limited or waived had independent counsel before entering into the agreement. Provisions regarding spousal support will not be enforced if they are unconscionable at the time of enforcement.

Under section 1614 of the California Family Law Code, you are allowed to amend or revoke your premarital agreement after you get married, but must follow similar procedures as the initial creation of the agreement.

The Only Premarital Agreement Worth It’s Salt is One That Is, at the End of the Day, ENFORCEABLE!

Probably the most important part of the California Uniform Premarital Agreement Act is found in section 1615, which sets out when a premarital agreement in California is enforceable, and when it isn’t. The usual caveats apply here:

  • There must be financial disclosure;
  • The premarital agreement must not be unconscionable;
  • There must not be any coercion; and
  • The parties must understand what they are signing.

Also important: California requires that there be at least seven days between when a party is first presented with an agreement and when the agreement is signed.

Without legal representation, there is a good chance that an agreement, developed in the absence of expert advice, may be invalidated in court.  It may also fail to contain all the provisions it can contain, versus those it cannot.

At the Law Office of Channe G. Coles, we provide comprehensive and professional legal representation and counsel when planning, developing, drafting, and executing your California Premarital Agreement.  It is important to make the most out of an agreement which may secure the success of your marriage, as well as the success of your divorce. Attorney Channe G. Coles understands both these goals and will work closely with you to secure the success of your future, no matter the outcome of your marriage.

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