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Divorce & Family Law Blog by Attorney Jamie Elmer of Berkeley, California

Prenuptial Agreements: What residents of Alameda County need to know

Prenuptial Agreements: What residents of Alameda County need to know

Do I need a prenuptial agreement to avoid being liable for my fiancé's debts?


-Your separate property, [property that you acquired before the marriage or property you receive by way of a gift or inheritance], and your wages cannot be used to satisfy your spouse's debts incurred before the marriage.
-However, your wages and any property acquired during the marriage or held jointly will be subject to your spouse's debts incurred during the marriage.

-Your separate property will not be liable for the debts of the other spouse incurred during the marriage [except for debts incurred for the necessaries of life].

-Therefore, a prenuptial agreement providing that your income and particular property remain your separate property during marriage will protect your earnings and other separate property from the debts of your fiancé/spouse, whether incurred during or before the marriage.

Can I prepare a prenuptial agreement on my own without an attorney?

Probably not.

-Prenuptial agreements are subject to strictly interpreted statutory requirements, so don't do it on your own, or least without help.

- For instance, a prenuptial agreement will not be enforced by the court unless all of the following are true:

  1. a party must be represented by a lawyer, or, give up the right to representation by independent legal counsel in a writing separate from the prenuptial agreement, and,
  2. must have had at least seven calendar days between the time they were first presented with the agreement [and advised to seek independent legal counsel], and the time the agreement is signed, and
  3. if not represented by an attorney, must have had the basic effect of the agreement, as well as the rights and obligations they were giving up in the agreement, explained to them in writing, including specifying who explained it to them.

-Prenuptial agreements can also be attacked for inadequate disclosure of the property and financial obligations of a party, unless there is a separate voluntary and express waiver in writing of any right to disclosure other than that given.

Both parties should be represented by their own attorney.

-In order to assure that the agreement is enforceable, and to minimize the possibility of the agreement being invalidated, both parties should have their own attorney; [although one attorney can do most of the work, the other party should at least have an attorney review the agreement, advise them, and sign off on the agreement].

Can we provide that there will be no spousal support should we separate or divorce?

Yes, however a waiver of future spousal support requires that the party seeking support have been represented by an attorney in entering into the prenuptial agreement [a written waiver of the right to legal representation is not sufficient], and even then, the court can invalidate a waiver of spousal support if it would be unconscionable to enforce it at the time support is sought.
It is often wiser to provide some level of spousal support, or cash assistance, or limit the waiver to the first few years of the marriage, so that the provision regarding support won’t be deemed unconscionable.

What are the main benefits of a prenuptial agreement?

-Prenuptial agreements can make sure your pension and retirement benefits are really yours. Under California Community Property law, any money you put into retirement accounts or credits earned toward your pension during the marriage are community property and thus your spouse is entitled to one half. With a Prenuptial agreement you can keep all of your pension and retirement benefits should you ever separate or divorce.
-Make sure the Real Property you own before marriage stays 100% yours. Payments made by you [or your spouse] during marriage on your separate real property mortgage, or refinancing, could wind up turning your home into community property in which your spouse has an interest. With a prenuptial agreement you can keep your real property from becoming community property, despite "community" contributions.
-Make sure any business you own before marriage stays 100% yours. Any personal efforts of either party that results in added value to a business owned by one of the parties, even if owned before the marriage, will create a community interest in that business. With a prenuptial agreement you can keep your business from becoming community property, despite "community" contributions.

-As stated above, prenuptial agreements can protect you from the debts of your spouse.

Prenuptial agreements can be used to avoid unwanted effects of California community property and family law). Prenuptial agreements can totally preclude the application of California community property and Family Law, or can pick and choose to preclude only those applications of the law one wishes to avoid. Prenuptial agreements can provide that some or all of the exclusions [or other provisions in the agreement], will only apply if the marriage terminates before a specified period of time.

-Without a valid, enforceable agreement to the contrary, California Family Law provides that:

  1. Anything of value acquired by either party during the marriage is community property, meaning that it is divided equally in a divorce proceeding. This includes pension and any other retirement benefits accrued or earned during the marriage; wages, salary and anything of value created by a person's personal efforts, and any property acquired during the marriage [except for gifts specifically given to one person, and inheritances].
  2. Any debt or obligation incurred by either party during the marriage is a community debt, for which both parties will be jointly and severally liable.
  3. Any income used to pay a mortgage or debt on real property, even if it is the separate property of one of the parties, will create a community interest in that property.
  4. Putting property that was owned before the marriage into both parties names during the marriage will not make it one hundred percent community property. The person who owned the property before marriage will be entitled to reimbursement of the entire net value of the property at the time it was placed in both parties' names, with only the excess value above that, divided as community property.

Can we still do a property agreement if there is not enough time to complete a prenuptial agreement before the marriage, or after we are already married?

A postnuptial agreement is much more vulnerable to attack than a properly prepared prenuptial agreement, but can be done.

After the parties are married they have a fiduciary duty [a heightened standard of care and loyalty], to each other such that any agreement that benefits one party to the burden of the other is presumed to be the result of undue influence, which means that the agreement can be invalidated, leaving the usual community property and Family Laws to apply.

And often the motivation for such an agreement stems from one party's superior financial situation, and the agreement will often be to that person's benefit. Although the presumption is rebuttable, the courts are quick to invalidate such agreements where the burdened party is not represented by an attorney, and/or there is not a full and fair disclosure of the rights and effect of the agreement, or any other reason or factor that prevents the burdened party from having full knowledge of the rights and consequences of the agreement.

On the other hand, none of the statutory requirements for a prenuptial agreement apply to a postnuptial agreement. However since a postnuptial agreement is subject to a higher level of scrutiny, it is always wise to comply with the prenuptial statutory requirements, even when preparing a postnuptial agreement.

If  you have further questions regarding prenuptial agreements, please contact Martin "Jamie" Elmer, family law attorney in Berkeley, California, at (510) 644-2411 or by email, for a free initial consultation.