Prenuptial agreements are often misunderstood and get a bad reputation. Some people think that signing a prenup makes you more likely to get a divorce because you’re already preparing for a divorce even before marriage! Other people think that prenups are only for rich people who have much to lose in case of a divorce. In fact, both statements are untrue. There is no conclusive evidence indicating that people with prenups are more likely to get a divorce. And, every couple entering a marriage should have a prenup.
The truth of the matter is this: a prenuptial agreement is a good thing to have because it gives you the opportunity to have a heart-to-heart discussion of 1) what assets and debts you have and 2) how you want to manage your assets and debts moving forward. Talking about money can be uncomfortable but it’s better to get these things out in the open before you get married.
Benefits of a Prenup
A prenup is a legal agreement that a couple enters before getting married. The agreement defines how you manage your assets and debts when you are married, and how they will be resolved if you get divorced. For example, if one person owned a family heirloom before they were married, who will own the heirloom after a divorce? If one person has credit card debt, who is responsible for the debt after the marriage has ended? If, during your marriage, a distant uncle dies and gives you his entire estate, will that inheritance be *yours* or will it be shared as community property?
The benefit of a prenuptial agreement is that these issues are discussed and agreed upon before marriage. A prenup gives you the power to manage your assets, debts, and incomes. The state of California has a default prenup. So, if you don’t have a prenup in place, the state will give you one regardless of whether you agree to it or not. Might as well get your own prenup, that way, you can keep control.
DIY Prenup vs One Drafted by a Lawyer
In California, couples are allowed to draft their own prenups. However, the document must be signed by a notary before the courts will recognize it as a valid legal document. Each party is allowed at least one week to seek independent legal advice before signing the paperwork. There are certain things that a DIY prenup cannot include such as unfair, exploitive or deceptive terms. Anything that concerns child custody or child support will not be enforced. There’s a list of conditions that need to be met for a DIY prenup. With that in mind, it might be worth it to hire a family law attorney to help you draft a prenup that is comprehensive, robust, legal, and enforceable.