The value of premarital agreements in a California divorce

Prenuptial agreements can stave off bitter conflict in the event of a divorce.

In the not-so-distant past, prenuptial agreements (also called prenups, premarital agreements or premarital contracts,) were seen as being only helpful for the very wealthy. These agreements were sometimes stigmatized by the media and spun in a negative light as a shady means of keeping a poorer spouse from getting his or her fair share after divorcing someone much richer. That may have been true in a few cases, but that simply isn't reality any longer. Prenups are useful for people of all economic stations and, aside from just spelling out terms of such things as property division and alimony, can help prevent conflict during an already-emotional split.

Wider use than previously

As mentioned, prenups are now much more common than they were just a few years ago, and they are also being used for different reasons than they were in the past. Not only are they still performing the "traditional" purposes of setting forth the terms of alimony or distinguishing certain assets as separate property instead of marital, they are also popping up in second or third marriages as a way to supplement comprehensive estate plans (by protecting, for example, family heirlooms, collectibles or closely held businesses for children of previous relationships).

Of course, the tried and true purpose of establishing the terms of alimony and property settlement beforehand is still a very popular reason why many people are taking the time to carefully consider prenuptial agreements. Many states in recent years have reformed their alimony laws, establishing limitations on how much spousal support/alimony can be paid or for how long. California hasn't taken that step yet, but such reform movements have been introduced here for the past legislative sessions and are gaining popularity. By setting out the terms of alimony in a binding prenuptial agreement before the marriage, the laws governing payment of alimony won't be an issue. The parties can decide between them the terms instead of relying on general guidelines set forth by the legislature.

Limitations

For as useful and versatile as they are, there are some things that even the best-drafted prenups can't do. Premarital agreements cannot dictate the terms of child custody or child support. Any provisions purporting to do so will be voided by a family court judge, and, depending on how engrained those provisions are with the additional terms of the agreement, their presence could make the entire document unenforceable.

In addition, provisions in a prenup that dictate behaviors or lifestyle preferences are also commonly voided (and, again, could end up making the entire agreement unenforceable). These include such things as requiring one or both spouses to maintain a certain weight throughout the marriage, to have a certain number of children, or to guarantee a certain level of physical affection between the spouses.

The surprising benefit

Many people view the concept of prenups as an unromantic one, or even that someone interested in a prenuptial agreement feels that the marriage itself is doomed to failure. That just isn't true. Prenups are merely legal tools designed to provide financial security in case something happens in the future; think of them as a kind of divorce "insurance." They force both prospective spouses to have an open, honest conversation about financial matters before marriage, which is something that everyone can benefit from.

For help drafting an enforceable prenuptial agreement before your California marriage, contact an experienced family law attorney like those at the Newport Beach law offices of Burch, Coulston & Shephard, LLP. Call them today at (949) 565-4158 or send an email.