Premarital/Marital Agreements ◦ California Lawyer

Business owners often sign agreements with their partners to obtain premarital agreements in the event that any of them gets married after the fact. Business owners want to know that the business in which they invest time, energy, and money will not be threatened by potential future marital dissolutions of other partners. They want to ensure that liens will not be placed on real estate or other business assets in the event of a divorce down the line by one of the partners, or that the business be ordered to be sold.

Reasons To Consider a Premarital or Marital Agreement

This is but one example of reasons that clients contact Miller & Associates to talk about prenuptial agreements. People are often interested in premarital agreements for other reasons such as the following:

• One or both engaged parties own businesses
• One or both engaged parties have children from previous marriages
• Either the fiancé or the fiancée owns real estate
• One or the other future spouses expect to receive a major inheritance
• The family of one of the engaged parties owns a family vacation home, and all siblings have agreed to protect the family property through premarital agreements
• Engaged couples are older and established and wish to retain separate finances or agree to some other alternate financial arrangement in a marriage
• The engaged parties have vastly different incomes or asset portfolios
• One or both of the engaged parties wish to limit his/her exposure to spousal support(alimony) in the event of divorce

Engaged couples do not need to fear that a premarital agreement is a forecaster of doom for the marriage. Many people with solid marriages appreciate the fact that financial matters are clearly spelled out in a premarital agreement that both had a hand in crafting and signing before the wedding. A prenup can prevent misunderstandings at any point in a marriage regarding assets and income, whether acquired before or after the marriage was formalized.

Note: Prenuptial agreements do not address questions of future child support in the event of a separation. A parent (or potential future parent) cannot sign away a future child's right to support.

Contested Prenups

Even when a prenuptial contract is legally formalized, challenges may arise later as to its enforceability at the time of a marital separation or divorce. Miller & Associates attorneys are available to help contest or defend a contest of a premarital agreement. Contact us to schedule a consultation.

The factors to consider regarding premarital agreements, taken verbatim from California Family Code 1615:

1615. (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:

(1) That party did not execute the agreement voluntarily. (2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:

(A) That party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party.

(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:

(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel,

(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.