Frequently Asked Questions
Marriage is a contract. Most people about to marry don’t think of it that way; they don’t think of it that way because nobody explains what’s in the contract they sign by saying “I do”. If you buy a house, in California, you’ll need to read, and sign, about twenty or thirty pages; if you buy a car, about ten, and even to join a gym in California, you’re required to read and sign two or three. To get a marriage license, however, all you need to do is confirm that you’re not married to anyone else, pay the fee, and off you go to the chapel.
Q. Why would WE want (or need) a “pre-nup”?
A. Pre-marital agreements (pre-nuptial agreements, “prenups”, or PMA’s) are agreements which change the marriage contract, in advance, and tailor it to fit the individuals’ choices about their marriage.
Q. What parts of the “contract” can a pre-nup change?
A. Without a PMA, the financial relationship between spouses is controlled by whatever law is in effect where they live, at the time of any dispute. If spouses live together in California, and the marriage breaks down, California’s family law will apply to the process of ending their financial relationship, including dividing their property and debts, and setting any spousal support, alimony, or maintenance payments.
A PMA allows spouses to change some of those rules:
In California, property acquired during a marriage, and the earnings of spouses during the marriage are generally community property, and debts which the parties incur during the marriage are community debts. In the event of a divorce or separation, the entire net community is divided equally. A PMA can change those rules, and can provide that some or all property and money, and the obligations and debts which would otherwise be divided as community property, belongs entirely to one spouse, or the other.
Without a PMA, marriage gives each person a mutual obligation to contribute to the support of the other spouse. That obligation may continue after the end of the marriage, as an order for the payment of spousal support, alimony, or maintenance. Spousal support, in California, is decided based on a long list of factors, including each party’s earnings, each party’s reasonable needs, and the length of the marriage.
A PMA, allows spouses to specify, limit, or even waive their rights to receive spousal support or alimony from each other in the event of a dissolution.
Dispute Resolution Rules
Divorces, and other disputes between spouses about financial matters, can be time and money-consuming, if the parties are unable to resolve their disagreements, and need a judge to make decisions for them. A PMA can provide for other dispute-resolving tools to be used instead of the issues being decided in court. The parties can agree, in a PMA, to arbitration, mediation, or other private dispute resolution tools. They can agree, in a PMA, to specify which state’s property division rules will be applied.
What PMA’s Can’t Do:
Current California law (and the law in the other states) precludes prevents certain issues from being resolved by a PMA.
Parents cannot make a binding agreement awarding custody of a child who isn’t born yet. Since California law requires that the court consider a child’s best interests in making any determination of custody, the parents cannot make a binding PMA that one of them will have custody permanently, no matter how terrible a parent he or she may be.
In California parents owe an obligation of support to their children, and California child support orders are always to be modifiable to protect the children’s best interests. Parents-to-be or parents can’t make a binding PMA, in advance, in which one gives up, or limits the right to collect support for the children from the other.
Since California is a “no-fault” divorce state, a PMA cannot provide for a financial penalty if one party is “unfaithful”.
A clear mutual understanding of “the deal” is the best “marriage insurance” even if the discussion isn’t a romantic one. Marriages break down most often due to failed expectations. Call us to make sure that your expectations are met.
Understand the marriage contract before you say “I do”; Contact us for a pre-marital consultation.