A party may waive very important rights to which s/he is entitled under California law or gain rights s/he would not otherwise be entitled to receive on marriage dissolution. Either way, a California prenuptial agreement can have some very serious consequences that a party cannot anticipate if s/he doesn’t fully understand them. A party must be completely informed of assets and liabilities of the parties and knowingly, intelligently and without coercion execute the prenuptial agreement. In California, the prenuptial agreement can be more complex than a contract between a construction company and a landowner building a skyscraper in California. Why? For the most part, any mutually agreeable provisions can be contained in a construction contract or any contract. On the other hand, a California prenuptial agreement/contract is strictly regulated under California law. Otherwise, it is not worth the paper on which it is written, that is, it is unenforceable in a California court. See Barry Bond’s case ruling unenforceable prenuptial agreement.
Each marriage is unique in and of itself. For example, a couple could both move from their parent’s home into a marital home with no assets or debts of each party. Basically, they planned to build their lives together. Typically, divorce is not something to be considered at all. A prenuptial agreement would not be necessary.
Nowadays, a lot of marriages occur later in life when assets have been accumulated and oftentimes second, third or fourth marriages with children involved which complicates the marriage contract. In addition to assets, couples are bringing more liabilities, including credit card debt, student loans, and even mortgage debt into first and subsequent marriages. In addition, because of the longer life span, we can expect to have more than one partner in our lifetime with assets accumulated in the working years.
Each marriage has a different story, different DNA so to speak, e.g., different religions, different cultures, different traditions, different ages, different places, etc., especially in Los Angeles County. Accordingly, no simple one-size form fits all. Sample California Prenuptial Agreement Forms on the internet are just that: “Samples.” The chance is slim that the agreement is valid.
Sometimes couples fall in love and get married before a prenuptial agreement can be prepared, e.g., “let’s just go to Vegas and get married” or circumstances arise in which the couple separate and then get back together or a cheating scandal arises or step-child intervene, etc. Then a postnuptial agreement may be prepared. Again, the provisions must be carefully drafted to be enforceable. See the McCourt battle
Should you hire an attorney to prepare the premarital agreement or postnuptial agreement? Absolutely!!. It’s a requirement: unless a spouse is represented by an attorney, any provision in the agreement affecting rights to future spousal support (alimony) will not be enforceable. When you hire an attorney, you are paying for that person’s expertise and advice more than just drafting an agreement. When a party negotiates a prenuptial agreement, s/he must understand all the consequences of each individual clause and how they work together. A man or woman cannot expect to understand all the provisions of a prenuptial agreement unless s/he is an expert.
For a valid prenuptial agreement, you should contact RoseAnn Frazee. She is a law school professor who teaches prenuptial agreements to law students and knows the requisite provisions. She is sensitive to varying marital situations. In addition, she has defended against many prenuptial agreements and was able to settle those divorces based upon the defense that the prenuptial agreements were unenforceable.