review premarital agreementBecause prenuptial agreements are viewed very skeptically by judges, due to the penchant for abuse by one spouse (with a higher income or asset base) taking advantage of the other spouse, it is always advisable to have an attorney review a prenuptial agreement before it is signed. The attorneys for each party will sign an acknowledgment that they have discussed the agreement with their client and that their client fully understands the agreement. This acknowledgment will help a family court judge enforce the prenuptial agreement, as it may foreclose arguments that a party was unaware of what they were signing or were pressured into signing the agreement without having the opportunity to review and negotiate it.

In addition to the reasons above, certain situations require each party to have independent attorney review of their prenuptial agreement in California. For instance, when the parties are waiving their right to spousal support (alimony), the parties must be represented. Waiver of spousal support is potentially a big sacrifice for the spouse with the lower income, so the State wants to make sure the spouses understand the nature of the waiver.

It is important to remember that all issues relating to children – custody, visitation, and child support – are not addressed in a prenuptial agreement. Those issues will be determined based on calculations and circumstances relating to the child’s best interests at the time of divorce, if that comes to pass. So the main issues dealt with in a prenuptial agreement in California are the treatment of joint assets and debts and spousal support.

In dealing with joint property accumulated during marriage (referred to in California as “community property”, in which each party has an undivided one-half interest) and spousal support, the purpose of a prenuptial agreement is to overrule the default rules of splitting community property and providing for spousal support in the event of a divorce. You do not need a prenuptial agreement to maintain consistency with the default rules, such as property owned prior to marriage, inheritances and gifts, all being categorized as separate property. A prenuptial agreement can, however, be useful to clarify what the parties’ separate property is prior to marriage and how that property will be treated during the marriage if community money or effort is expended on such separate property.

It is Critical To Understand What You Might Be Forfeiting in Signing a Premarital Agreement

Often we hear clients saying that they are fine with the agreement as is and that they don’t want to make changes, before they conduct the attorney review. The purpose of the review, however, is to make sure the client understands what is in the agreement, and what they are giving up by signing the agreement. Many times, clients realize after the review that they do not want to waive certain rights and that changes need to be made to the agreement. Ensuring that we have enough time for this process is critical, as once the agreement is finalized, and no more changes are to be made, the parties must wait 7 days before signing the agreement. This “cooling off” or waiting period helps ensure that there is no pressure from one spouse on the other to sign the agreement, and that the final agreement is truly entered into freely.