IS A PRENUPTIAL FOR YOU?

You might be recently engaged or about to be engaged. If you are, you might just be asking “is a prenuptial right for me and my partner?”

Typically prenups are an important consideration for the following:

• older couples (because they typically have acquired assets);
• those who come into a marriage with assets;
• people who have children from prior relationships;
• people who expect future significant income, such as high-net worth individuals
• anyone and everyone looking to be married

High Net-Worth Divorce is a unique divorce scenario that involves parties who, according to the Securities and Exchange Commission are situations “in which a natural person who has individual net worth, or joint worth with the person’s spouse, that exceeds $1 million dollars at the time of purchase, excluding the value of the primary residence of such person; or a natural person with an income exceeding $200,000 in each of the two most recent years or joint income with a spouse exceeding $300,000 for those years and a reasonable expectation of the same income level in the current year.”  Such a financial situation carries with it specific differences that require the skill of an experienced high net-worth divorce lawyer. With the expertise of a reputable high net-worth attorney, you can greater protect your assets and finances from the costly divorce process.

PRENUPTIAL AGREEMENTS FOR EVERYONE

But prenups aren’t just for the super-rich. As Joslin Davis, president of the American Academy of Matrimonial Lawyers, explains, creating a prenuptial agreement — or for unmarried couples, a cohabitation agreement — can make sense for many people. “It requires people to think ahead,” she said. Young couples can also benefit from the creation of a prenuptial agreement because it provides them a chance to plan out issues like paying off one partner’s student-loan debt, or compensation for leaving the workforce to care for their future children.

AVOID MISTAKES IN A PRENUPTIAL AGREEMENT

If there are mistakes in a prenuptial agreement it can be declared invalid, which can cause much greater headaches should your marriage turn to divorce. Some common mistakes include:

• Same Legal Representation – Both spouses need separate attorneys to ensure each understands the prenuptial agreement independently of the other. This ensures the signing of the final prenuptial agreement is voluntary, without one spouse feeling as if they are being pressured into signing it.
• Signed Under Duress – If one party feels pressured into signing the prenuptial agreement, or if they were influenced by drugs or alcohol affecting their mental capacity, it can be invalidated.
• Signed Too Soon Before the Wedding – Don’t wait until the last minute to sign the prenuptial agreement. If the couple divorces soon after the wedding, an argument that one party was coerced into signing can be argued. The prenuptial agreement should be signed one to three months before the wedding to give the spouse sufficient time to think about and consider what they are signing.
• No Full Disclosure – Make sure the prenuptial agreement discloses all assets and debts.
• Child Support Provisions – Do not include child custody or support. If the couple divorces and children are involved, the court will rule in whatever is the best interests of the child and not what was in the prenuptial agreement. If child custody and support are included the whole prenuptial agreement can be invalidated.
• Biased – If the prenuptial agreement seems biased towards one spouse party, it can be decided it’s unenforceable or “unconscionable.”
• Unenforceable Provisions – If a prenuptial agreement has unusual provisions, such as who does the dishes or takes out the garbage, they can be deemed unenforceable, which will weaken it.
• Oral Agreement – A prenuptial agreement should be in written and multiple copies made. Each spouse and spouse’s attorney should have a copy of the prenuptial agreement.
• Ambiguous Writing – If anything is unclear, or there is ambiguous wording, the prenuptial agreement can be challenged in court.

HOW TO BRING UP A PRENUPTIAL AGREEMENT

It can feel really awkward to bring up the subject of a prenuptial agreement. Amid all the excitement of an engagement, it can honestly feel like a downer to broach the topic. Here are some tips: Bring it up sooner rather than later. When the conversation about a prenuptial agreement is brought up early on, it allows a couple to discuss what they want from a marriage. Chances are you and your spouse are already ironing things out when it comes to the future of your marriage. A conversation about a prenuptial allows you to forecast what might happen during that marriage. For example – family businesses, children, economic goals are all aspects that can affect a prenuptial agreement. Hire a mediator that will listen to both sides and craft an agreement that both of you agree to. After the agreement is settled, you’ll want to have separate attorneys review the agreement to ensure it will be upheld if ever challenged. Remember that having the conversation about a prenuptial agreement is an opportunity for you to practice open dialogue with each other. Look at it as an opportunity to hone the skills you will need in your marriage.

MARITAL PROPERTY DIVISION

If you’re going through a divorce, you’ll want to do everything you can to protect yourself financially. Doing so means completely understanding marital property division, and what is considered community or separate property.

DIVIDING MARITAL PROPERTY

Keep in mind that you are allowed to divide your marital property any way you’d like to. The only reason your state laws might play a role is if you and your spouse cannot agree to how the property will be divided and you need to go to court.

SEPARATE AND COMMUNITY PROPERTY

Separate Property: property that each spouse brings into the marriage. That spouse retains that after the marriage. This also includes property inhabited by a spouse during the time of the marriage. 

Community Property: property acquired and income earned during the marriage. In the comment property states of Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin, community property is usually divided 50-50. Remaining states use a property division principle called equitable distribution. With equitable distribution property is divided fairly (50-50). Occasionally the higher wage earner is given 60 percent to 75 percent of the property. You’ll want to work with a divorce attorney in the state in which you are divorcing so they can help advise you on your state’s specific laws regarding property division.

PROTECTING YOURSELF

Regardless of how your marital property is divided, you need to protect yourself. Your ex might not make the payments for various reasons – lack of money, spite, illness. In that case you might need to return to court or various other means of collecting the lost payment. Because of that, it’s often advised that you protect yourself by getting cash in hand once the divorce agreement is reached. If it’s decided that your ex will pay you out following the sale of an asset, wait until the sale is final, and then ensure you get the money to finalize your divorce.

WORKING WITH A DIVORCE ATTORNEY

Divorce is one of the most difficult and challenging experiences a person will ever have to go through in life. It can affect all aspects of one’s existence, from your physical well-being to your emotional, psychological and financial stability. Divorce is never easy, yet it can definitely be made easier with the support and professional assistance of a skilled divorce attorney. Having worked within the field of family and divorce for over a decade within the state of California, San Diego divorce lawyer 619 Divorce has experienced a wide spectrum of cases involving divorce, spousal support, alimony, child custody and child support. With many years of combined experience working within this field, the lawyers at (619) Divorce are experts in the field of divorce and family law.

For advice on divorce, you need the expert law firm of 619 DIVORCE. Schedule a consultation today.

(619) DIVORCE
225 Broadway
San Diego, CA 92101
Phone: (619) 431-3131