Prenuptial / Premarital Agreements Attorney Orange County
The ring is on her finger, the venue selected, the wedding cake and wine chosen, the reception is planned and the honeymoon airline tickets are in the mail… But, not so fast! There remains one business matter you might want to consider before you get to the “I DO’s.”
Why You Might Consider a Prenup
Before you enter the contract of marriage, you might also consider the consequences for what happens if one of you breaches that contract resulting in divorce. Obviously, no one enters into a marriage planning a divorce and it is our hope that divorce is something that you never experience. Unfortunately, approximately 50% of American marriages end in divorce. We see it. Up close and personal! We believe that a prenuptial agreement is like an insurance policy. Given the right circumstances, you might want to consider a prenuptial agreement “in case of divorce,” just as you will have property insurance “in case of fire,” or life insurance “in case of premature death.”
Skittish About A Prenup? Like It Or Not, You Already Have One
That’s the title of a recent Forbes Magazine article! California has already written your Prenup for you! Spouses-to-be will be subject to a prenuptial agreement if they do nothing! Seriously? Yes… Every state in the U.S. has laws governing property and marriage and what happens if you divorce. If you don’t draft your own unique prenuptial contract, you are subject to California’s prenuptial contract — those default rules whether you like it or not. If you familiarize yourself with those rules and like the way they will dictate your affairs, drafting your own prenup is unnecessary. However, if you object to any of California’s ‘prenuptial agreement rules,’ you have the opportunity to change any of those rules to better-reflect your own preferences for your unique circumstances. You do not have to agree (by doing nothing) to the one-size fits all laws that will dictate what happens should you ever divorce. Drafting a custom prenup is not “romantic,” but it’s analogous to drafting a will. You wouldn’t think a prudent person silly for planning to protect their existing or future heirs should that person die unexpectedly. [
What Is a Premarital / Prenuptial Agreement?
A premarital agreement – also known as a prenuptial agreement – is a contract each spouse enters into prior to marriage. The purpose of a premarital agreement is to predetermine the distribution of property if the marriage should be dissolved. Many premarital agreements clearly stipulate the amount of support that a spouse will receive in the event of a dissolution.
Premarital Agreements Are Used by All Income Brackets
There is a preconceived notion that prenuptial agreements are only for the wealthy, but in reality, prenup legal instruments are used by all income brackets. Prenuptial agreements are particularly useful for second, third and subsequent marriages because there are often living children and other responsibilities to honor and protect.
Protecting Specific Assets Using a Premarital Agreement
There are very common situations where a premarital agreement is often used. For example, if John and Megan are to be married and plan to move into the house that John had purchased years prior to the marriage — that John and his now-grown children have an emotional attachment to, a premarital agreement can specifically stipulate that the house will remain John’s separate property in the event of a divorce. Without such an agreement, any monies paid into the house’s mortgage by Megan would normally be deemed as a community property asset. Remember – marital property is community property without a valid prenuptial agreement stipulating otherwise.
NOTE: Spouses commonly wish to address future possible custody and child support issues in their prenuptial agreements. A prenuptial agreement may not be drafted for the purpose to predetermine child support issues. California law prohibits this.
People for whom a prenuptial agreement might benefit:
- Anyone contemplating marriage
- Spouses-to-be who already have children, families, businesses, & assets
- Spouses-to-be who already own a home or other real estate
- Spouses-to-be who are established business owners
- Spouses-to-be with a professional career
- Spouses-to-be who have been previously married
- Spouses-to-be who wish to keep their finances as separate property
- Spouses-to-be who move frequently
- Spouses-to-be who plan to move into a non-community property state
While couples enter into marriage contracts (marriage is a state-sanctioned contract) with the goal of living a long and happy life together, people and circumstances change. CHANGE is a “given” in all things LIFE. Prenuptial/Premarital agreements can replace the state of California’s pre-written choices if you don’t like the State’s rules. In order to be valid and effective, Prenuptial agreements should be created and/or reviewed by an experienced California family law attorney.
Contact an Orange County Premarital Agreement Family Law Attorney
Attorney Ed Fahlen is ready to ask you the right questions which will assist you in drafting the appropriate premarital agreement. Ed is a caring, compassionate, client-focused family law attorney who cares about his clients. In fact, most new clients are referred to Ed by current and former clients. Call (714) 395-5669 any time any day 24/7 365 to speak personally and confidentially with Ed. ALWAYS OPEN.
Here are California’s Legal Requirements for a Prenup'CLICK' To Read The Actual FAMILY.CODE SECTION 1610-1617
1610. As used in this chapter:
(a) “Premarital agreement” means an agreement between prospective
spouses made in contemplation of marriage and to be effective upon
(b) “Property” means an interest, present or future, legal or
equitable, vested or contingent, in real or personal property,
including income and earnings.
1611. A premarital agreement shall be in writing and signed by both
parties. It is enforceable without consideration.
1612. (a) Parties to a premarital agreement may contract with
respect to all of the following:
(1) The rights and obligations of each of the parties in any of
the property of either or both of them whenever and wherever acquired
(2) The right to buy, sell, use, transfer, exchange, abandon,
lease, consume, expend, assign, create a security interest in,
mortgage, encumber, dispose of, or otherwise manage and control
(3) The disposition of property upon separation, marital
dissolution, death, or the occurrence or nonoccurrence of any other
(4) The making of a will, trust, or other arrangement to carry out
the provisions of the agreement.
(5) The ownership rights in and disposition of the death benefit
from a life insurance policy.
(6) The choice of law governing the construction of the agreement.
(7) Any other matter, including their personal rights and
obligations, not in violation of public policy or a statute imposing
a criminal penalty.
(b) The right of a child to support may not be adversely affected
by a premarital agreement.
(c) Any provision in a premarital agreement regarding spousal
support, including, but not limited to, a waiver of it, is not
enforceable if the party against whom enforcement of the spousal
support provision is sought was not represented by independent
counsel at the time the agreement containing the provision was
signed, or if the provision regarding spousal support is
unconscionable at the time of enforcement. An otherwise unenforceable
provision in a premarital agreement regarding spousal support may
not become enforceable solely because the party against whom
enforcement is sought was represented by independent counsel.
1613. A premarital agreement becomes effective upon marriage.
1614. After marriage, a premarital agreement may be amended or
revoked only by a written agreement signed by the parties. The
amended agreement or the revocation is enforceable without
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
(A) That party was not provided a fair, reasonable, and full
disclosure of the property or financial obligations of the other
(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
(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
(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.
(3) The party against whom enforcement is sought, if unrepresented
by legal counsel, was fully informed of the terms and basic effect
of the agreement as well as the rights and obligations he or she was
giving up by signing the agreement, and was proficient in the
language in which the explanation of the party’s rights was conducted
and in which the agreement was written. The explanation of the
rights and obligations relinquished shall be memorialized in writing
and delivered to the party prior to signing the agreement. The
unrepresented party shall, on or before the signing of the premarital
agreement, execute a document declaring that he or she received the
information required by this paragraph and indicating who provided
(4) The agreement and the writings executed pursuant to paragraphs
(1) and (3) were not executed under duress, fraud, or undue
influence, and the parties did not lack capacity to enter into the
(5) Any other factors the court deems relevant.
1616. If a marriage is determined to be void, an agreement that
would otherwise have been a premarital agreement is enforceable only
to the extent necessary to avoid an inequitable result.
1617. Any statute of limitations applicable to an action asserting
a claim for relief under a premarital agreement is tolled during the
marriage of the parties to the agreement. However, equitable defenses
limiting the time for enforcement, including laches and estoppel,
are available to either party.
Free Introductory Meeting
I encourage you to reach out to make that free introductory meeting with me by calling (714) 395-5669. There is absolutely no pressure whatsoever. Typically, people will want to sit down with a divorce attorney to discuss their current circumstance and to learn of their options. I am pleased to offer this complementary legal service to residents of Orange County and beyond.
If it is late at night or inconvenient to call me, please email me using my CONTACT US form on the left side of the screen. This form comes directly to my desk. I will contact you the minute I see it.
Conveniently located in Fountain Valley
We are located off the 405 Freeway. Here is a picture of my office building and a Google Map to get your bearings.