Prenups: 3 Things You Need to Know

By Don Schweitzer

Love was in the air this past Valentine’s Day. You may have gotten engaged, as many couples do this time of year. If so, congratulations on your engagement! Planning a wedding and the happily ever after is an exciting time, but there is one detail that must take serious consideration: a prenuptial agreement.

When most people think of prenuptial agreements, they think of the absurd and crazy stipulations we often read about in celebrity prenups: cheating clauses, extravagant allowances and much more. The reality is prenuptial agreements, or prenups, are created to protect both parties. A prenup that is well written can provide a fair and accurate roadmap that will feel right for both parties in the event things don’t work out. But the devil is in the details.

Here are three areas of prenuptial agreements to consider before you head down the aisle:

1. Prenuptial agreements usually alter significant rights of both parties

Consider the following situation: A woman has been married for twenty-five years. Prior to marriage, her fiancée asked her to sign a prenuptial agreement that confirmed the property he owned prior to marriage as his separate property, but also provided that any of the parties’ earnings during the marriage contributed to the husband’s separate property (i.e. his house payments and retirement accounts), would be characterized as his property if they divorced. Though not a wealthy man at the time of marriage, twenty-five years later, when the parties separated, the husband managed to pay off his house and his retirement accounts were valued at 2.5 million dollars. The value of these assets were mostly due to the contributions made from the parties’ earnings during their marriage. The woman, on the other hand, had no valuable assets before the marriage, and if the agreement was found to be enforceable by the court, she would leave the marriage empty-handed.

2. The Cost of Prenuptial Agreements

It is prudent for a party who insists on entering into a prenuptial agreement to ensure that his or her fiancée have competent independent counsel. Retaining a competent family law attorney usually demands large retainer fees. Multiply the retainer by two, and expect to pay a lot of money. However, consider the money well spent because crafting a prenuptial agreement requires a solid understanding of the law as well as a familiarity of the unique provisions that should or should not be contained within a particular prenuptial agreement. In light of these considerations, as well as the nuances in the law, we highly suggest people seek qualified representation to assist them in drafting prenuptial agreements.

Also, entering into a prenuptial agreement does not guarantee your divorce will cost less. In fact, many cases where the litigation associated with the enforceability of the prenuptial agreement was as or more expensive than a regular divorce.

3. The enforceability of a prenuptial agreement may depend on when it was signed

Timing is everything. In fact, under current California law the rules are clear as to how much time must exist between the presentation of a prenuptial agreement and the wedding ceremony. Furthermore, the law that existed at the time the agreement was signed will be used by the court to determine the enforceability of the agreement. This is significant in California, as the law has been substantially modified throughout the past thirty years. Consequently, agreements that may not be enforceable under today’s law, may be enforced by the court because of the difference in the law when the parties signed the agreement, and visa-versa.

Finally, if you are considering entering into a prenuptial agreement with your fiancée, or if you are experiencing difficult times in your marriage and wondering if the prenuptial agreement you signed many years ago is enforceable, the best practice is to speak with a qualified family law specialist who can help navigate prenuptial agreements.

Don Schweitzer is founder and partner of The Law Offices of Donald P. Schweitzer, based in Pasadena, Calif. As a Certified Family Law Specialist and former District Attorney, he has extensive background in domestic violence, divorce and child custody issues. Prior to becoming an attorney, Mr. Schweitzer was a Police Officer for approximately 10 years.

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