Prenuptial Agreements
A prenuptial agreement is an instrument used to financially protect spouses in the event that they divorce. This contract, if constructed properly according to the law, offers the best protection against claims for spousal support, or a spouse acquiring property ownership in separate property. A prenuptial agreement can stop the court from applying California community property laws to order spousal support or divide property and debt. It can designate that property and income remain the separate property of a spouse.
A court is not required to enforce prenuptial provisions that address child support or child custody when they are inappropriate; the court has jurisdiction over the custody and support of children to determine what is in their best interests at the time of the divorce.
Spouses who want to keep certain property they own before marriage as their separate property should understand the principles of California family law as it defines community and separate property. A prenuptial agreement can help protect against a spouse obtaining an interest in property acquired before or during marriage. In cases where a spouse has children from a previous marriage, it is important to clearly define what is community and what is to be kept separate property.
Spouses sometimes mistakenly think that property they acquired before marriage will stay their property. Even though property was purchased before marriage by one spouse, the other spouse may still claim an interest, for example if community income or funds were used to pay down the mortgage. Generally, parties wishing to keep property separate should pay down the mortgage and make improvements with separate funds; nevertheless, a prenuptial agreement can protect their interest in the event that community funds are used.
Parties should not comingle monies in joint accounts that they wish to preserve as their separate monies. This is true for monies obtained through gift, inheritance, separate earnings, or existing before marriage. A prenuptial agreement would fortify the characterization of property during marriage and in the event of a divorce.
Prenuptial agreements can be set aside when there is clear proof of fraud, duress, coercion or undue influence.
Unfortunately some individuals have underlying motivations of gaining wealth in marriage. These motives may not be apparent before or during marriage, but discovered upon divorce. When one has acquired substantial assets before marriage, or the other party has significant debt or debt problems, a prenuptial agreement can be invaluable. Unfortunately many individuals without prenuptial agreements find themselves in a divorce parting with property they consider their own, or taking on debt they do not consider their own.
Contact the Law Offices of Jennifer Colarossi for a free half-hour consultation discussing your specific need for a prenuptial agreement.
