The Complete Resource for Prenups in San Diego

A Closer Look Into Prenup Agreements

A prenuptial agreement, or a prenup for short, is a contract between two people who are about to get married. It may affect financial and legal matters both during and after the marriage. Frequently, anybody with considerable wealth may take steps to protect his or her assets if the marriage doesn’t work out. But a prenup can also be of great importance to those of more modest means, as its primary purpose is to clearly define each spouse’s rights when it comes to joint property and income. In San Diego, as in the rest of California, living together before you marry can significantly impact the contents of your prenuptial agreement. Under California law, if a couple cohabits and they later marry , the court may determine that any property acquired during cohabitation is now the couple’s joint property. Because of this, the terms of your prenup should address specific issues regarding cohabitation, such as what occurs to assets acquired before or after the marriage. In addition, the courts will review your potential prenuptial agreement to ensure that it is fair and that no party was pressured or taken advantage of in the negotiations. The family court is therefore able to help people with all kinds of assets to resolve issues that could arise should the relationship end in divorce. Finally, the law also requires that both parties fully disclose all marital assets at the time of drafting the agreement. If one party withholds this information, then the agreement could become null and void.

Key Legal Requirements in San Diego

A prenup is an agreement between intimate partners in California – either before marriage, or before a domestic partnership. To be legally valid under the law, the agreement must be:

• written;
• notarized;
• signed by both partners; and
• entered into voluntarily.

There are specific legal requirements for valid prenuptial agreements in San Diego and throughout California, in the California Family Code Sections 1610-1618. State law requires them to be in writing, signed by both parties and notarized. In addition, the parties must be provided with a fair disclosure of material property and debts, or that each party has waived such disclosure. It is advisable but not required to attach a separate disclosure statement showing assets and debts of both parties.
Both parties must be represented by independent legal counsel to ensure the agreement is enforceable, unless:

– the party failing to hire an attorney waived such representation in writing; or
– the party failing to hire an attorney was provided an opportunity to retain independent legal counsel, but chose not to do so.

If the party without an attorney had independent legal advice, or waived it in writing, the agreement may still be enforceable under two circumstances: 1) the waiver of counsel was involuntary; or 2) the agreement unfairly denies spousal support to the censured party and not doing so would be unjust.

Common Terms Found in San Diego Prenup Agreements

Unlike postnuptial agreements, which can only take effect after you’re married, prenuptial agreements immediately become enforceable when they’re entered into. As such, the scope of a prenup is much broader than that of a marriage contract, which is largely regulatory in nature. As a result, there are greater opportunities for things to go wrong during the drafting process, which could potentially invalidate the contract or decrease the likelihood of it success in the future (when viewed in the context of litigation). To help you avoid pitfalls, we’ve compiled descriptions of certain clauses you’ll likely find in a San Diego prenuptial agreement.
Property Division Almost all prenuptial agreements include a property division clause — if you didn’t, how could a judge possibly determine how your property would be divided if you divorced? California family law courts enforce marital agreements "in good faith and after a full disclosure of the value of assets by both parties."
Financial and Debt Responsibilities California law allows prenuptial agreements to address financial and debt responsibilities. Anything from student loans to credit cards to weapons can potentially be covered. These agreements can also address who’s responsible for making certain payments, providing care for children (if applicable), and alimony.
Spousal Support Historically, spousal support has been one of the most difficult issues for couples to address in prenuptial agreements. This is largely due to the fact that many judges take a dim view of the practice, believing dollars spent on an attorney to compile an agreement could be put to better use. The general rule is, if something happens during the course of your marriage that might lead one party to expect support, then the judge will likely find that the state’s standard alimony laws should apply. On the other hand, a judge might ignore the agreement altogether if the provision would leave one spouse living in poverty.

Advantages of Having a Prenup

One key benefit of avoiding complicated divorce matters through a prenuptial agreement is that you will know exactly what will happen to your assets and rights. A prenuptial agreement drafted by an experienced San Diego family law attorney can prevent any assets acquired during the marriage from being deemed marital property subject to equal division in the event of a divorce. Additionally, a prenuptial agreement can define whether or not alimony (which California refers to as spousal support) will become necessary in the event of a divorce and if so, when and for how long it will last. This could potentially avoid a battle over whether there is a such a thing as alimony and prevent a judge from making a decision that neither party likes. There is no guarantee of a particular breakdown of finances becoming part of the final settlement.
The process of creating a prenup can serve as a practice run for the types of negotiations that occur during a divorce, helping to avoid nasty surprises when a divorce becomes necessary. We will innovate to identify strategies that are readily available to secure your future.

Finding the Right San Diego Lawyer for Your Prenup

Choosing the right lawyer to draft a prenuptial agreement in San Diego or any other city for that matter is critical to the success of the prenuptial agreement. After all, there are specific rules that must be followed in order for a prenuptial agreement to be valid and enforceable, as discussed in the first section of this article.
Finding an attorney with skill and knowledge to assist you with drafting a premarital agreement is the most important part of the process. But it is not enough to simply hire any family law attorney when you are preparing a prenup. Most importantly, the lawyer who drafts a prenuptial agreement for you must have experience in drafting and negotiating such agreements. Therefore, it is advisable to ask the lawyer you are considering hiring to see examples of premarital agreements that he or she has drafted. Of course, the prenup cannot be exactly like the ones seen in examples because your circumstances may be unique. But your lawyer should be able to show you sufficient examples to demonstrate an ability to draft a simple or complex agreement , as appropriate.
Above all, an attorney who helps you with your prenuptial agreement should be open and honest with you about your needs and what the law says. He or she should listen to you and help you understand the various risks associated with no prenup or having a prenuptial agreement. If you seek a premarital agreement, it is also important to consider consulting with your lawyer about whether you want to have a separate review by a different lawyer prior to finalizing the agreement.
Another key consideration is cost. When hiring an attorney to draft a prenuptial agreement, it will be the few hours of preparation that dramatically exceeds the typical hourly rate. Therefore, the costs can be significant to have only a few hours of work involved in drafting a prenuptial agreement. However, these costs can be minimized by doing the following:

Possible Problems and How to Avoid Them

One of the most common challenges faced when drafting or executing a prenuptial agreement in San Diego is lack of communication. As previously mentioned, prenuptial agreements require one party to make financial disclosures to the other. A prenuptial agreement not only requires full and accurate disclosure of financial assets, but also an explanation of whether or not these assets will significantly change over the course of the marriage. A prenuptial agreement is far more likely to be upheld if a person provides ample disclosures and is completely fair and honest with his/her spouse. If the person does not provide complete and accurate financial disclosures or attempts to draft unfair terms in the contract, the prenuptial agreement may be subject to challenge in court under California Family Code Section 1615.
Another common challenge to prenuptial agreements is a failure to recognize the type of exemptions that exist. For example, prenuptial agreements are not binding with respect to retirement plans that are specifically governed by federal law. The Supreme Court has agreed that retirement plans, like pensions, profit-sharing plans and stock bonus plans, are covered by the Employee Retirement Income Security Act of 1974 (aka ERISA). To the extent that a prenuptial agreement seeks to alter the disposition of an ERISA governed plan, it will be considered void and unenforceable.
To strengthen a prenuptial agreement and avoid challenges at the time of divorce, each party should have his or her own attorney to review the agreement prior to execution. It is also wise that any agreement is prepared in a manner that provides fair and reasonable provisions for both parties. Finally, each party should never act under duress prior to signing the agreement. To accomplish this goal, negotiate your terms early and engage in the drafting process with full knowledge of what you want in the agreement, as well as the types of provisions that your spouse wants.

Local Case Examples and Scenarios

While hypothetical, the following scenarios provide a valuable insight into common situations with which San Diego prenuptial agreements are often confronted.
Case Study 1: David and Lisa
David, a successful entrepreneur from La Jolla, ran a small chain of boutique gourmet food shops across California. He was in his mid-fifties when he met Lisa, a nurse at Scripps Memorial Hospital. David came from a wealthy "old money" background and had a sizeable nest egg from both his family estate and his own ventures. David proposed to Lisa and made it clear that while he was very happy for the two to share in everything they had together, he thought it best that each spouse keep personal assets personal. Lisa would be entitled to 50 percent of all David’s income, and he would be bound to 50 percent of all her salary as a nurse. simple splitting of goods and services combined with moving expenses for Lisa when they got married were neutral as well but Lisa should not expect anything defaulted to her if David died leaving no will in Probate proceedings unless he gifted to her specifically or it was conveyed as Tenants by the Entirety. While Lisa did not view herself as a gold digger by any means, her family’s modest background did raise a few eyebrows among their ultra-wealthy social circle and her family and friends were concerned for her safety and security. Their prenuptial agreement was nothing but fair and perfectly reasonable.
Case Study 2: Jessica and Ryan
Jessica and Ryan both greater than seven figures in liquid assets. Both were professionals that had done well for themselves. In introducing them to each other it was easy to see the financial future these two professionals could have together. However when Ryan Latham first met Jessica she joked privately that he was ‘a tool’ and was only out for her money. Ryan was actually a genuinely nice guy and shared a pretty good deal more of Jessica’s interests than her previous boyfriends did but once he was exposed to her bank accounts he was quite hesitant to express to her just how deeply he was enjoying their relationship. Once they went to her home and saw her deep freezer filled with organic meats , and a separate freezer for organic vegetables and fruits he was aware of how healthy and conscientious she was about what and how she ate. Too many long conversations over lunch and ordering takeout together caused Ryan to finally tell Jessica she needed some shares of stock in a big tech company. He and his team were the financial advisors for that company and he couldn’t stand by without holding some equity of his own. While she was surprised he managed to out-crunch her General Mills Cheerios she was happy that he brought it to their attention. They were engaged to be married before ever consulting with their divorce attorney. When they did consult their divorce attorney Ryan took Jessica back to the office to sign. He was adamant at getting married that day and not waiting nine months not to mention the cost involved. While his consults always came to his office in Encinitas, this time Ryan made the short flight across the border and had them marry in Tijuana. It ended up being an expensive mistake as the court invalidated the short way of getting married in Mexico. Ryan had to pay for Jessica to fly down to his condo in Coronado so they could be lawfully married and then married in the eyes of God once again in a church in San Diego near where Jessica worked.
The above examples illustrate a few of the different approaches San Diego couples take with regard to prenuptial agreements.