In San Diego, California, prenuptial agreements (sometimes referred to as pre-marital agreements) are not uncommon. In San Diego, there are many persons who marry after having another relationship, which may or may not include marriage, who have children. In these highly fact-dependent situations, it is important that the children from the previous relationship be protected regarding their inheritance and distribution of the separate property of their relative upon death. In addition, in the event of a divorce or legal separation, the prenuptial agreement will protect the separate property assets from distribution as a community property asset. These are very complicated, and the character of the asset can change easily from separate property to community property by transmutation or commingling, even with a prenuptial agreement. Skilled legal counseling and representation, both in the preparation of the prenuptial agreement and execution, are essential. For further protection and as an advanced legal strategy, our office recommends a revocable living trust to be the basis for the property described in the prenuptial agreement. This is discussed in more detail in the last paragraph of this article.
In general, the law in California favors community property, and prenuptial agreements are disfavored. However, in the absence of a valid prenuptial agreement, California’s default rules govern the dissolution of the marriage. The popularity of prenuptial agreements has grown less taboo and increasingly more popular over time, and the talented staff at The Bacinett Law Offices will guide you through the complex process of drafting a valid agreement, as well as counseling you with regard to a pre-existing agreement in the alternative. There are many requirements for the prenuptial to be valid and upheld in court in the event of a challenge to the enforcement of the agreement. There are many matters which can be contracted in the prenuptial agreement, including the following: choice of law; ownership and rights to a life insurance policy death benefit; making of an estate plan; disposition of property in the event of death, divorce or legal separation; the right to control property; spousal support; etc. All prenuptial agreements should be reviewed by an experienced attorney, and the attorney will sign the agreement as well. In the case of spousal support, the prenuptial is not enforceable unless an attorney is representing the party against whom the agreement is being enforced, granted the enforcement is not unconscionable at the time of the enforcement of the agreement and not at the time the prenuptial was entered.
In San Diego, the Judges look to the Family Law Code to determine whether the prenuptial is enforceable or not. There are many instances in which the prenuptial will not be enforced, such as the spousal support provision for non-represented signatories and parties. There are also enforceability issues unless both parties have legal representation and each respective attorney signs the prenuptial on behalf of each of their clients. If the goal is to have the prenuptial enforced and one party is not represented, this greatly increases the likelihood that the prenuptial will not be enforced. There are many rules for attorneys who are preparing prenuptials when the other party is not represented. An attorney cannot prepare a prenuptial agreement unless both parties have legal representation. After all, what is the benefit of a prenuptial agreement if it cannot be enforced when needed?
Among various other factors the court may find relevant, a prenuptial agreement may be found unenforceable if the parties did not execute the prenuptial voluntarily, did not have adequate knowledge of the property or financial obligations of the other party, did not have an attorney or waived having an attorney after being informed of same, did not have seven calendar days to review the document between the time when the party was initially presented the agreement and advised to find independent legal counsel, and the time the prenuptial was signed. In addition, the prenuptial agreement must be in writing. Oral prenuptial agreements are not enforced. Therefore, it is crucial to ensure that the drafting and procedures are followed if enforcement of the agreement will be sought. In San Diego, it is not uncommon for a motion to be brought to “set aside” the prenuptial on the grounds listed above, among others. Accordingly, if there is a prenuptial agreement in your divorce or legal separation case, you need to seek an experienced attorney for a legal analysis as to the validity and/or enforceability of the agreement.
Lastly, the current legal strategy our office uses is to prepare a revocable living trust at least thirty days prior to the wedding and solemnization of the marriage. This revocable living trust is used as an estate plan and defines the separate property “universe” which is then listed in the prenuptial agreement for the assets and financial position. This gives the children of the prior relationship their distribution upon death of their relative and is an estate plan which is recognized by the probate courts. This will also save the children and any other beneficiaries probate fees and costs, as well as expediting the distribution of the estate and providing privacy in the distribution. It is crucial that there is no commingling nor transmutation of the assets in the revocable living trust or in the prenuptials, and competent and experienced legal advice is necessary for not only the preparation of the documents but, for advice on what to do, and more importantly what not to do, in order to obtain the goal of having the separate property remain separate.
In conclusion, if you are considering getting married and have children from a prior relationship or have other persons (known as “beneficiaries” in legal terms) who you would like to leave your separate property and estate to other than your fiancée and intended spouse, it is crucial to have the requisite documents timely and competently prepared. Our office urges all to contact us at least sixty days prior to the wedding and solemnization of the marriage.