The Role of an Attorney in a Pre- or Postnuptial Agreement
It was once the case that myths surrounding prenuptial agreements effectively dissuaded many from considering whether they might benefit from one. The most common misconceptions—that asking for one is a red flag indicating lack of trust in the relationship, or that only high-net-worth individuals need one—are slowly giving way to a better understanding of when a prenup might be helpful for establishing a couple’s financial responsibilities and rights in their marriage as well as in the event of a divorce. Even when future spouses agree that a premarital agreement is appropriate, however, they may not be clear on what to do next to create a legally enforceable document. Hiring an attorney to guide you through the process is strongly advised to avoid making mistakes that could invalidate your prenup or lead to unanticipated results.
How Can a Lawyer Assist in Prenuptial Agreements?
While California law, in most situations, does not absolutely require that a party to a prenup hire a lawyer to represent them while the agreement is being negotiated and drafted, going without legal representation is far from ideal. The legal requirements for a valid prenup are complex, and the most obvious danger of trying to go it alone is the risk that the contract simply won’t stand up in court when it’s needed because it wasn’t executed properly. But engaging an experienced family law attorney can do much more than just ensure a prenup will be enforceable down the line. An attorney can help tailor a prenup to the couple’s specific circumstances, provide advice on issues they may not have considered, facilitate potentially emotional discussions around finances, and safeguard their client’s interests throughout negotiation over terms.
How Does a Prenup Legal Advisor Ensure Protection?
California is a community property state, which means that when a couple divorces, the assets and debt they have accumulated during their marriage are considered equally the property of both, to be split evenly. A prenuptial agreement enables a couple to take control of how their assets will be divided and certain other financial arrangements if the legal default would not be advantageous—for example, if one spouse owns a business that they would not want to split with an ex or wants to protect the inheritance rights of the children of a first marriage. Because parties are potentially giving up rights they would be entitled to in the marriage, the law is particular about requirements needed to make a prenup valid and the limitations of what can be included.
The first benefit of retaining experienced attorneys on both sides is to ensure that those legal requirements are met. (It is a conflict of interest for one attorney to attempt to represent both spouses in drafting a prenup, as what is in the best interest of one is unlikely to be identical to what is in the best interest of the other.) For example, California requires that there be a minimum of seven calendar days between when the final agreement was presented and when it was signed. The law also specifies, in Family Code § 1612, that if any provision in a prenup affects spousal support, that provision is unenforceable if the party against whom enforcement is sought was not represented by independent legal counsel at the time the agreement was signed. A prenup also can’t be used to determine child support or custody, as those issues will always be determined according to the best interest of the child at the time of divorce.
Beyond meeting the letter of the law, an attorney’s experience with potential issues beyond the specific concerns that sparked a couple’s interest in getting a prenup can help ensure that the legal document that results is truly comprehensive. Their perspective can also provide valuable information on what is considered fair and reasonable for financial matters such as property division. This open discussion can help couples make informed decisions and may serve to avert potential conflicts that can arise when finances are not fully disclosed before marriage.
Finally, negotiating a prenup can be highly emotional, and it may be difficult for an individual to effectively advocate for themselves or articulate their needs. An attorney can speak for you to protect your interests, ensure that the final agreement accurately expresses what both parties have agreed to, and walk you through the implications of each provision so you can be confident you fully understand what you’re signing.
What Role Does Legal Counsel Play in a Postnuptial Agreement?
Engaging an attorney is even more crucial if you are contemplating a postnuptial agreement—a legal agreement like a prenup that is signed after marriage. A couple may decide they need a postnup because their financial circumstances have changed since they were married, or to amend the terms of a prenup. However, the court does not view postnups in the same light as prenups, because instead of agreeing to limit rights they will have in the future if they get married, the couple is modifying rights they already have. Neither is in the position to simply walk away from an unfair deal, increasing the likelihood that one might be pressured or coerced into an agreement that isn’t in their best interest.
While courts will tend to presume a prenuptial agreement is valid unless it is proven otherwise, they will want proof that a postnup follows the law, is fair, and was freely entered into by both parties before they uphold it. In addition to providing the benefits above, having knowledgeable attorneys represent each party to a postnuptial agreement can mean the difference between a contract that will be upheld in court and one that is thrown out.
Your Bay Area Family Law Resource
If you have questions about prenuptial or postnuptial agreements, the expert family law attorneys at Hart Ginney have answers. We work with Bay Area couples to create effective agreements that provide certainty and peace of mind. To schedule a consultation, contact us today at (510) 628-0250 or fill out the form below.
