A recent article in the newsletter Investing Answers offers some excellent tips on prenuptial agreements – things anyone here in Orange County or elsewhere should keep in mind as they consider whether to ask a fiancée to sign a prenup and, if so, what the document ought to say.
The central take-away from the piece is that while pre-nups can be very useful (indeed, some couples may consider one essential), there are also several popular misconceptions about the documents. The biggest one concerns what a prenuptial agreement can and cannot do.
As the article notes, “a well-drafted pre-nup can even ‘override’ both Community Property law… and Equitable Distribution state law.” The key phrase there, of course, is “well-drafted,” and it is important to understand that there are limitations. Judges are free to throw out pre-nups they deem to be grossly unfair to one party or the other either in the way the document was originally conceived or in its practical effects at the time of a divorce (for example, if a couple’s circumstances have changed so radically in the years since the document was signed as to render it patently unfair). As the article further notes: “The agreement must also be signed early enough before the wedding date to avoid a later claim of coercion.”
Similarly, it is important to understand that a pre-nup cannot be used to sweep away certain obligations. It can’t, for example, say that one party or the other will never have to pay child support. Pre-nups also cannot pre-emptively resolve custody issues concerning children who have not yet been born (in other words, you can’t say ‘If we have kids and later break up this or that parent will have primary custody’).
Obviously the particulars of an agreement, indeed, whether a prenuptial agreement is the right course at all, will vary for every couple. This is an area in which it is important to seek, and receive, experienced legal advice from an Orange County family law attorney. The basic decision concerning whether or not to draft a pre-nup is, itself, a significant step for any couple; one that should only be taken after careful consideration.
Investing Answers: 4 Things Everyone Should Know Before Signing a Prenuptial Agreement